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2023 DIGILAW 321 (AP)

Pabbisetty Subbarayudu v. Madaka Narayana

2023-02-06

RAVI CHEEMALAPATI

body2023
ORDER : 1. The present revision petition is filed aggrieved by the orders dated 22.09.2022 passed in I.A. No. 187 of 2022 in O.S. No. 114 of 2010 on the file of the Court of the learned Principal Senior Civil Judge, Kadapa. 2. The petitioners are the defendants and the respondent is the plaintiff in O.S. No. 114 of 2010. 3. The respondent filed a suit in O.S. No. 114 of 2010 on the file of the Court of the learned Senior Civil Judge, Kadapa for declaration of his title over the plaint schedule property, for permanent injunction restraining the petitioners herein from interfere with his peaceful possession and enjoyment of the plaint schedule property and for other reliefs. 4. For clarity, the parties hereinafter will be referred to with their status in the suit in O.S. No. 114 of 2010, i.e. to say the petitioners will be referred to as ‘the defendants’ and the respondent will be referred to as the plaintiff. 5. During the course of trial, the 4th defendant got himself examined as DW-1 and got marked the Photostat copy of the title deed passbook said to have been issued in favour of the plaintiff by Tahsildar Kadapa as Ex.B18. Since the plaintiff raised objection for marking the Photostat of the said document, it was marked subject to objection considering the submissions made by the defendants that the original of Ex.B18 in the custody of the plaintiff and Ex.B18 is referred in Ex.A31 marked by the plaintiff. 6. Aggrieved thereby, the plaintiff filed I.A. No. 187 of 2022 under Order-13, Rule-3 read with Section 151 of Code of Civil Procedure (for short ‘CPC’) to de-exhibit Ex.B18 from the evidence, contending that Ex.B18 does not either belong or pertain to him and the 4th defendant without following the procedure contemplated under law for marking secondary evidence, produced a fake and fabricated Xerox copy and got it marked as Ex.B18. The reason assigned while marking Ex.B18 that there was a reference regarding original of Ex.B18 title deed pass book in Ex.A31 gift deed executed by the plaintiff in favour of his wife, is not true and correct and the reference in Ex.A31 pertains to pass book No. M300342 but not pertains to patta No. 300 and the plaintiff never claimed that patta No. 300 pertains to him or to the suit property. 7. 7. The 4th defendant filed counter denying the averments of the petition, inter-alia contending that, the petition filed under Order-13, Rule-3 CPC has no application to the present facts of the case, since the inadmissible document within the meaning of the said proviso is the document that is hit by the provisions of the Indian Stamp Act and Registration Act, whereas the present document is not hit by any of such statutory restrictions. It is further contended that since the document was marked subject to objection, the question as to whether the document can be received in evidence as secondary evidence is a matter to be decided at the stage of final disposal of the suit and more over the document was referred to in the gift deed got marked by the plaintiff vide Ex.A31. There are no bona fides in the petition and hence prayed to dismiss the same. 8. The Court below having heard both the parties, allowed the petition. 9. Aggrieved by the same, the defendants preferred this revision, inter alia contending that, since Ex.B18 has already been marked subject to objection, the same cannot be de-exhibited and the defendants have laid foundational evidence on facts for admission of secondary evidence. However, the Court below erred in demarking the document. Hence, prayed to allow the revision petition by setting aside the impugned order. 10. Heard Sri Amanchi Royal, learned counsel for the petitioners, and Sri G. Ramesh Babu, learned counsel for the respondent. 11. Sri Amanchi Royal, learned counsel, in elaboration would submit that when once a document was exhibited the Courts cannot de-exhibit and moreover Ex.B18 was marked subject to objection and its admissibility should have been decided at the time of final disposal of the suit, however, the Court below erroneously allowed the application filed for de-exhibiting Ex.B18. The learned counsel would further submit that the defendants issued a notice in Form No. 7 vide Appendix-C of CPC read with sections 65 and 66 of the Indian Evidence Act to the plaintiff for production of original of Ex.B18 and while drawing attention of this Court to the said notice filed as P-3 contended that the same discloses that the defendants have followed the procedure contemplated for marking secondary evidence. The learned counsel would further submit that Ex.A31-registered gift deed dated 19.04.2022 executed by the plaintiff in favour of his wife, contains a reference of Ex.B18 and thus the same contradicts the contention of the plaintiff that Ex.B18 does not belong to him. However, the Court instead of postponing the admissibility of Ex.B18 till the date of final disposal of the suit has erroneously passed the impugned orders and hence prayed to allow the revision petition by setting aside the impugned orders. 12. On the other hand, Sri G. Ramesh Babu, learned, learned counsel for the respondent/plaintiff, would submit that Sections 65 and 66 of the Indian Evidence Act specifies a procedure to be followed before admitting secondary evidence and the notice placed on record as P3 is filed subsequent to marking but not before marking Ex.B18 and thus the same cannot be said to compliance of Sections 65 and 66 of the Indian Evidence Act and moreover, the defendants did not lay foundation in their pleadings for reception of secondary evidence and thus the Court below has rightly de-exhibited the document vide impugned orders due to non adherence of the due procedure of law to produce secondary evidence and the same does not require any interference of this Court and accordingly prayed to dismiss the Civil Revision Petition. In support of his contentions, he relied on R.V.E. Venkatachala Gounder vs. Arulmigu Viswesaraswami and V.P. Temple and Others, 2004 (1) ALD 18 and Abdul Rafi @ Abdul Rawood vs. Venkataiah Died by LRs. and Others, 2019 (4) ALD 479 . 13. Perusal of the impugned order shows that the 4th defendant got himself examined as DW-1 and got marked the Photostat copy of the title deed pass book purported to be that of the plaintiff as Ex.B18. Thereafter, the plaintiff filed I.A. No. 187 of 2022 under Order-13, Rule-3 CPC to de-exhibit Ex.B-18 on the grounds that the said document does not belong to him and that the defendants have not followed the due procedure contemplated under law for marking secondary evidence. Considering the same, the court below allowed the said application and de-exhibited Ex.B18. 14. Thereafter, the plaintiff filed I.A. No. 187 of 2022 under Order-13, Rule-3 CPC to de-exhibit Ex.B-18 on the grounds that the said document does not belong to him and that the defendants have not followed the due procedure contemplated under law for marking secondary evidence. Considering the same, the court below allowed the said application and de-exhibited Ex.B18. 14. Regarding the contention of the petitioners that when once a document was marked, objection regarding its marking cannot be permitted to be raised subsequently is concerned, Order XIII Rule-3 CPC specifically states that the Court may at any stage of the suit reject any document which it considers irrelevant or otherwise inadmissible, recording the grounds of such rejection. It is no doubt true that admissibility of the document can be postponed to the final disposal of the suit, but there is no hard and fast rule that it should be done at the time of disposal only. 15. Further, in R.V.E. Venkatachala Gounder referred to supra relied on by the learned counsel for the respondent, the Hon’ble Apex Court held that the objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as an exhibit, an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision.” In the instant case, mere marking of the document as an exhibit does not in any way preclude the other side from raising an objection regarding admissibility. Thus, the said contention raised by the learned counsel for the petitioners is not sustainable. 16. Sections 65 and 66 of the Indian Evidence Act stipulates due procedure to be followed for leading secondary evidence. It is settled law that in order to produce secondary evidence, foundational evidence of the same has to be led by the party who seeks admission of secondary evidence. 16. Sections 65 and 66 of the Indian Evidence Act stipulates due procedure to be followed for leading secondary evidence. It is settled law that in order to produce secondary evidence, foundational evidence of the same has to be led by the party who seeks admission of secondary evidence. As per sections 65 and 66 of the Evidence Act, before marking secondary evidence, notice should be given to the party in whose possession the original document is available. It is relevant here to note that, the notice placed on record as P-3 said to have been issued under sections 65 and 66 of the Indian Evidence Act is subsequent to marking Ex.B18. Thus, there is non-adherence of the procedure contemplated under Section 65 and 66 of the Indian Evidence Act. 17. In J. Yasodha vs. K.Shobha Rani, (2007) 5 SCC 730 their Lordships of Hon’ble Apex Court held at Para-9 as follows: “9. The rule which is the most universal, namely, that the best evidence the nature of the case will admit shall be produced, decides this objection. That rule only means that, so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it. Section 65 deals with the proof of the contents of the documents tendered in evidence. In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. Under Section 64, documents are to be provided (sic proved) by primary evidence. Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the section. In Ashok Dulichand vs. Madahavlal Dube, (1975) 4 SCC 664 it was inter-alia held as follows: (SCC pp. 666-667, Para 7) “7. After hearing the learned counsel for the parties, we are of the opinion that the order of the High Court in this respect calls for no interference. In Ashok Dulichand vs. Madahavlal Dube, (1975) 4 SCC 664 it was inter-alia held as follows: (SCC pp. 666-667, Para 7) “7. After hearing the learned counsel for the parties, we are of the opinion that the order of the High Court in this respect calls for no interference. According to clause (a) of Section 65 of Evidence Act, secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the court, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it. Clauses (b) to (g) of Section 65 specify some other contingencies wherein secondary evidence relating to a document may be given, but we are not concerned with those clauses as it is the common case of the parties that the present case is not covered by those clauses. In order to bring his case within the purview of clause (a) of Section 65, the appellant filed applications on 4-7-1973, before Respondent 1 was examined as a witness, praying that the said respondent be ordered to produce the original manuscript of which, according to the appellant, he had filed photostat copy. Prayer was also made by the appellant that in case Respondent 1 denied that the said manuscript had been written by him, the photostat copy might be got examined from a handwriting expert. The appellant also filed affidavit in support of his applications. It was however, nowhere stated in the affidavit that the original document of which the photostat copy had been filed by the appellant was in the possession of Respondent 1. There was also no other material on the record to indicate that the original document was in the possession of Respondent 1. The appellant further failed to explain as to what were the circumstances under which the photostat copy was prepared and who was in possession of the original document at the time its photograph was taken. Respondent 1 in his affidavit denied being in possession of or having anything to do with such a document. The appellant further failed to explain as to what were the circumstances under which the photostat copy was prepared and who was in possession of the original document at the time its photograph was taken. Respondent 1 in his affidavit denied being in possession of or having anything to do with such a document. The photostat copy appeared to the High Court to be not above suspicion. In view of all the circumstances, the High Court came to the conclusion that no foundation had been laid by the appellant for leading secondary evidence in the shape of the photostat copy. We find no infirmity in the above order of the High Court as might justify interference by this Court.” 18. In the instant case the petitioners contend that the original title deed was with the respondent. Thus, only when conditions of sections prescribed in Section 65 are satisfied, the Photostat copy of the title deed can be admitted as secondary evidence. As stated supra, clause (a) of Section 65 has not been satisfied. Therefore, the trial Court has rightly allowed the petition demarking Ex.B-18. The said order does not suffer from any infirmity warranting interference of this Court and as such, the Civil Revision Petition is liable to be dismissed. 19. In view of the above, the Civil Revision Petition is dismissed, confirming the orders dated 22.09.2022 passed in I.A. No. 187 of 2022 in O.S. No. 114 of 2010 on the file of the Court of the Principal Senior Civil Judge, Kadapa. There shall be no order as to costs. 20. As sequel thereto, miscellaneous petition, if any, pending shall stand closed. Interim orders, if any, shall stand vacated.