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2020 DIGILAW 123 (AP)

Panchakarla Parvathi v. Tungala Purnachandra Rao

2020-02-14

G.SHYAM PRASAD

body2020
JUDGMENT : G. Shyam Prasad, J. 1. This civil revision petition arises out of the order dated 12.9.2019 passed in IA No. 384 of 2019 in OS No. 12 of 2013 on the file of Senior Civil Judge, Avanigadda. 2. Heard the arguments of learned Counsel for the petitioner and learned Counsel for the respondents 1 and 2. 3. The petitioner is the plaintiff in the suit OS No. 12 of 2013. She filed an interlocutory application in IA No. 384 of 2019 under Sections 65 and 66 of Indian Evidence Act (for short "the Act") and Section 151 CPC seeking to permit to mark the Photostat copies of chit agreement and chit transfer form as Exs. A4 and A5 in the evidence. The Trial Court considered the provision under Sections 62, 63 and 65 of the Act, and has simply observed in Para 18 as follows: "18. .............the truth or otherwise of these Xerox copies of chit agreement and chit transfer form cannot be decided at this stage and it will be adjudicated in the main suit, a fortiori, mere marking of a document does not mean that it is proved and that the respondent is at liberty to rebut the same with cogent evidence. I find the point accordingly." 4. Learned Counsel for the petitioner submits that the Trial Court has not decided the issue in respect of Section 65 of the Act for receiving documents as secondary evidence. 5. Learned Counsel for the respondents submits that the Trial Court has clearly observed in the order that truth or otherwise of the Xerox copies would be decided at the stage of recording evidence and would be adjudicated in the main suit. 6. On consideration of submissions of both the Counsel, it is obvious that the Trial Court has not given a clear finding with regard to proof filed under Sections 65 and 66 of the Act and Section 151 CPC seeking permission to get Photostat copies of chit agreement marked in the evidence. Marking of the document in the evidence is something different from proof of the document as secondary evidence. The Trial Court is right in one aspect that the truth or otherwise of the Xerox copies of chit agreement would be decided at the time of trial. There is no dispute with regard to the impugned order passed by the Trial Court to that effect. 7. The Trial Court is right in one aspect that the truth or otherwise of the Xerox copies of chit agreement would be decided at the time of trial. There is no dispute with regard to the impugned order passed by the Trial Court to that effect. 7. In fact, Section 63 of the Act deals with secondary evidence, which reads as under: "63. Secondary evidence.-Secondary evidence means and includes- (1) Certified copies given under the provisions hereinafter contained; (2) Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies; (3) Copies made from or compared with the original; (4) Counterparts of documents as against the parties who did not execute them; (5) Oral accounts of the contents of a document given by some person who has himself seen it. Illustrations; (a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original. (b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original. (c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence; but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original. (d) Neither an oral account of a copy, compared with the original, nor an oral account of a photograph or machine copy of the original, is secondary evidence of the original." 8. It is observed in Sobha Rani v. Ravikumar, AIR 1999 P&H 21 , that an application moved for permission to lead secondary evidence based on ground of loss of document, the presence of document to be proved from the facts pleaded. In the present case, the evidence of R2 was recorded by the Trial Court who was the then Branch Manager of Shri Ram City Union Finance Limited, Challapalli. 9. The 2nd respondent is the M/s. Shri Ram Chits Pvt. Ltd., rep by its Manager, Challapalli and the Shri Ram City Union Finance Limited, Challapalli is not concerned with the present 2nd respondent company, as it is a different entity. 9. The 2nd respondent is the M/s. Shri Ram Chits Pvt. Ltd., rep by its Manager, Challapalli and the Shri Ram City Union Finance Limited, Challapalli is not concerned with the present 2nd respondent company, as it is a different entity. In fact, the Trial Court has not decided with regard to the receiving of secondary evidence under Section 65 of the Act, keeping in view the provision under Section 63, therefore, the Trial Court is directed to decide the said issue by giving opportunity to both sides and after deciding the said issue the document may be taken on record to decide its evidentiary value. 10. In the instant case, the originals are not available. The petitioners intend to mark Xerox copies without following the procedure under Sections 63 and 65 of the Act. The Trial Court received the Xerox copies without following the procedure for leading the evidence for receiving secondary evidence. 11. The Trial Court is directed to decide the issue raised in IA No. 384 of 2019 in respect of Sections 65 and 66 of the Act, in the light of the provisions under Sections 62 and 63 of the Act with regard to receiving Xerox copies of chit agreement, by giving an opportunity to both sides, within fifteen (15) days from the date of receipt of a copy of this order. 12. With the above observations, the civil revision petition is disposed of. No costs. 13. Miscellaneous applications, if any, pending shall stand closed.