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2021 DIGILAW 196 (TS)

Mir Aijaz Ali v. Syed Ali Ahmed Razvi

2021-06-25

B.VIJAYSEN REDDY

body2021
ORDER : 1. This revision arises out of order dated 21.08.2019 in I.A. No. 660 of 2019 in O.S. No. 179 of 2018 passed by the XII Additional District Judge, Vikarabad. 2. The petitioner is the plaintiff and the respondents are the defendants in O.S. No. 179 of 2018 filed for cancellation of sale-deed bearing document No. 2041 of 2016 dated 25.02.2016 and for perpetual injunction. 3. It is the case of the petitioner/plaintiff that he is the owner of the suit schedule property. He offered to sell the suit property to the respondents/defendants for a sale consideration of Rs. 15,00,000/-. The defendants paid Rs. 15,00,000/- viz. Rs. 5,00,000/- in cash on 25.02.2016 and Rs. 10,00,000/- was paid by the defendant No. 1 vide two cheques (i) cheque No. 326757 dated 25.02.2016 for Rs. 7,00,000/- and (ii) cheque No. 326758 dated 25.02.2016 for Rs. 3,00,000/- both drawn on SBI, Charminar, Hyderabad. The defendants assured the plaintiff that the funds will be arranged in the bank and requested the plaintiff to present the cheques after three months. On such assurance, the plaintiff executed the sale-deed bearing document No. 2041 of 2016 dated 25.02.2016 in favour of the defendants. It is the further case of the plaintiff that there was an oral understanding between them that the possession of the suit property will be delivered to the defendants only after the aforesaid two cheques are encashed. On the instructions of the defendant No. 1, the plaintiff presented the cheques on 20.05.2017 but the cheques were dishonoured for the reason “funds insufficient.” The plaintiff reminded the defendants to pay the amount covered under the cheques or else warned that the sale-deed will be canceled. The plaintiff, having come to know that the defendants are making efforts to sell the suit property in favour of the third parties, was constrained to institute the aforesaid suit for cancellation of sale-deed. 4. I.A. No. 660 of 2019 was filed by the plaintiff under Section 65 of the Indian Evidence Act seeking leave of the trial Court to receive and mark copies of the cheques and cheque return memos as secondary evidence. In the affidavit filed in support of I.A. No. 660 of 2019 the plaintiff stated that he could not find the original cheques and the return memos in his house. In the affidavit filed in support of I.A. No. 660 of 2019 the plaintiff stated that he could not find the original cheques and the return memos in his house. He tried to trace them but could not get them and therefore, filed the copies of cheques and cheque return memos and requested the Court below to receive and mark the said documents. 5. The Court below, under the impugned order, dismissed the petition holding that the cheques were lost due to default and negligence of the plaintiff. That they are crucial documents and the plaintiff ought to have taken utmost care in preserving the documents by not giving scope of loosing the documents. It is because of the negligence and default of the plaintiff the documents have been lost and as such, secondary evidence cannot be permitted with regard to the said crucial documents. Further, there is no evidence to show that the copies of the documents are the true extract of the original documents and to establish dishonour of cheques, the plaintiff can obtain statement from the bank and establish the said fact. 6. Notices were issued in the CRP. Proof of service is filed. There is an endorsement that returned un-served, addressee left, deemed to be served. 7. Heard the learned counsel for the petitioner. 8. Under Section 65(c) of the Indian Evidence Act, a Court is empowered to receive a document as secondary evidence, if the original has been destroyed or lost or when party offering the evidence of its content cannot, for any other reason, not arising from his own default or negligence, produced it in a reasonable time. The petitioner has stated that though the documents were available in his house but when the chief examination affidavit was filed, he could not trace out the cheques and the return memos. Since the respondents are set ex-parte in the suit, notice was not issued in I.A. No. 660 of 2019 to them. In view of the fact that there was no contest to the averments made by the petitioner in the affidavit, the Court below should have accepted the averments as true. No doubt, the documents form part of crucial evidence. However, it cannot be assumed that the documents were lost on account of the negligence of the petitioner. The petitioner has clearly stated that he could not trace out the documents. No doubt, the documents form part of crucial evidence. However, it cannot be assumed that the documents were lost on account of the negligence of the petitioner. The petitioner has clearly stated that he could not trace out the documents. In such circumstances, the Court below ought to have allowed the application. The genuineness of the documents and the crucial nature of the documents are not of any relevance to receive secondary evidence under Section 65 of the Indian Evidence Act. Proof of a document is a totally different aspect. By permitting secondary evidence to be taken on record, it cannot be assumed that the petitioner/plaintiff does not have to prove such documents. In fact proof of documents is a matter to be decided by the Court below at the time of deciding the main suit. 9. Learned counsel for the petitioner placed reliance on a decision of the erstwhile High Court of Andhra Pradesh in M/s. Ramakrishana Constructions vs. The Singareni Collieries Company Limited, 2015 (3) ALT 494 wherein it was held as under: “......In the normal course, unless some motive is suggested to the party proposing to adduce secondary evidence to the effect that he made an application to adduce secondary evidence on false grounds, normally he can be permitted to lead secondary evidence. A bare statement made on affidavit by a party would be sufficient proof of act that the documents has been lost or not traced out. There can be never be an absolute proof of fact that the document had in fact been lost. A statement of the person that the document was lost and in spite of his best efforts he could not trace out of the document would be sufficient evidence of the fact that the document has been lost.” 10. The aforesaid decision squarely applies to the facts of the present case. In the opinion of this Court, the petitioner has satisfied the requirement under Section 65 of the Indian Evidence Act, having stated in the affidavit by oath that the documents were originally available with him and the documents could not be traced out at the time of leading ex-parte evidence. 11. In the light of the above discussion, the civil revision petition is allowed. Pending miscellaneous petitions, if any, shall stand closed. There shall be no order as to costs.