Research › Search › Judgment

Andhra High Court · body

2020 DIGILAW 116 (AP)

Katta Venkata Satyanarayana v. Kadali Meri Florence Kumari

2020-02-12

M.VENKATA RAMANA

body2020
ORDER : M. Venkata Ramana, J. 1. Heard Sri Jakkamsetti Saraschandra Babu and Sri K. Sita Ram, learned Counsel appearing for the petitioner and the respondent respectively. 2. The respondent is the plaintiff. She filed a suit for perpetual injunction against the petitioner to restrain him from interfering with her peaceful possession and enjoyment of the plaint schedule property. It is to an extent of Ac. 0-50 cents in two different items. 3. The petitioner is resisting claim of the respondent on the ground that the sale deed dated 12.1.2015, which is the basis for the respondent to make such claim against him did not reflect, in fact, a sale transaction nor possession of the plaint schedule property was delivered thereunder to her. It is his contention that this sale deed was obtained as a security in a money transaction between him, and the husband of the respondent and the nature of this transaction, when brought to the notice of the elders, the husband of the respondent also admitted. It is the version of the petitioner that this conversation was recorded by him on his mobile phone and a copy of such conversation has been taken out in a compact disc. The petitioner now intends to produce this compact disc as a material document on his part to prove his contention at the trial. 4. It was the request made by the petitioner in the Trial Court filing a petition purportedly under Section 65-A of the Evidence Act. 5. The respondent resisted the claim so made by the petitioner in the Trial Court filing a counter denying such alleged conversation and claimed that the compact disc itself is a fabrication. Asserting that the petitioner himself had executed the sale deed in respect of the plaint schedule land and delivered possession, she claimed that the reception of this compact disc is unnecessary nor has any bearing in the matter. 6. The learned Trial Judge considering the material as well as the contentions of the parties observed that reception of this compact disc is not necessary, since it is not helpful to the petitioner or the respondent, having regard to the nature of the suit in between them and the proof required to be produced. Thus, observing by an order dated 26.7.2019, the request of the petitioner was rejected. 7. Thus, observing by an order dated 26.7.2019, the request of the petitioner was rejected. 7. Contentions are advanced on behalf of the parties in this civil revision petition on similar lines. 8. Now, the point for determination is-"whether there is justification to receive the compact disc sought to be produced by the petitioner in the course of trial proceedings?" Point: 9. The nature of the suit in between the parties shall be considered in the context of reception of this compact disc. The burden is on the respondent to prove her claim of possession of the plaint schedule property with right and interest. It is not necessary in the circumstances, for the petitioner to prove his possession and enjoyment of this property and he can well remain silent, if the respondent fails to prove such circumstances and to establish. 10. It is now contended by the learned Counsel for the petitioner that he is continuing to enjoy the plaint schedule land and that it was never delivered to the respondent. 11. The question of the petitioner proving his case raises only upon discharge of burden by the respondent. In such an event, it would be for the petitioner to make out such facts to repel the version of the respondent. 12. When such is the scope and ambit of the suit in between the parties, it is rather beyond comprehension how the alleged discussion among several others including the husband of the respondent and the petitioner said to have been recorded by the respondent, is relevant. Mere production of compact disc is not sufficient. The primary evidence in respect of electronic evidence, which a party tries to rely on is the device used for storing such information. In this case, if at all the case of the petitioner is accepted, it is his mobile phone. The contents of the compact disc going by the version of the petitioner shall be material which should have been retrieved from such mobile phone. It is not known whether the petitioner had taken all such precautions required by law to make out such compact disc. 13. The reason is that the information sought to be produced by means of such compact disc stands in the nature of secondary evidence in terms of Section 65-B of Evidence Act. It is not known whether the petitioner had taken all such precautions required by law to make out such compact disc. 13. The reason is that the information sought to be produced by means of such compact disc stands in the nature of secondary evidence in terms of Section 65-B of Evidence Act. Further, a certification shall be there clearly describing the manner in which such secondary evidence has been procured and also the source from where it has been procured. It is not mere reproduction of retrieval of such information that is sufficient and there shall be further proof as to certain scientific values to be maintained in making out such record electronically, to claim it as secondary evidence. These are the larger issues required to be considered, when secondary evidence of this nature is sought to be produced by a party. 14. When once a compact disc sought to be produced in the Trial Court is not accompanied by a certificate under Section 65-B of the Evidence Act, it can neither be received nor can be taken as a part of the record by the Court concerned. This is a mandatory requirement and particularly in the given facts and circumstances of the case, since the alleged information is not retrieved from a third party source nor such information is claimed by the petitioner as the one obtained from a different source. 15. The learned Trial Judge considered the possible impact, this compact disc would have on the claims of the parties, having regard to the scope of the suit itself and rightly. Rejection to receive the compact disc, in the circumstances by the Trial Court cannot be found fault with. 16. Therefore, finding no reason to interfere with the order under revision, the same has to be confirmed. 17. In the result, the civil revision petition is dismissed. There shall be no order as to costs. 18. As sequel thereto, all miscellaneous petitions, if any, shall stand closed. Interim orders, if any, shall stand vacated.