Palakurthi Raja Gopala Rao v. Chaluvadi Krishna Prasada Rao
2025-02-05
NYAPATHY VIJAY
body2025
DigiLaw.ai
ORDER : NYAPATHY VIJAY, J. This Civil Revision Petition is filed questioning the order dated 26.09.2022 in I.A.No.379 of 2022 in O.S.No.362 of 2021 passed by the I Additional Junior Civil Judge, Machilipatnam, Krishna District. 2. Petitioner is the plaintiff. The suit O.S.No.372 of 2021 was filed for recovery of an amount of Rs.4,82,660/-. The basis for the claim was that the plaintiff was doing business in shop bearing No.11/468-469 under the name and style of Sri Radha Krishna General Stores and was selling Paints of different companies. The Respondent had approached the Petitioner/plaintiff and they had entered into a business transfer agreement on 28.03.2018 and accordingly the business of the Petitioner was transferred to Respondent/defendant for a period of 5 years i.e. from 01.04.2018 to 31.03.2023 under a lease agreement dated 28.03.2018. Though the Respondent/defendant had taken the property in terms of the agreement dated 28.03.2018, the Respondent failed to make balance payment in terms of their agreement. As on the date of suit, Rs.2,81,598/- is payable by the Respondent. Since the amount is not being paid, the suit was filed. 3. In the course of the suit, the Petitioner filed I.A.No.379 of 2022 requesting the Court to consider the photostat copy of the business transfer agreement dated 28.03.2018 as secondary evidence and receive the same in evidence since the original document was not traceable. The Petitioner contended that the document is a crucial suit document and can be marked as secondary evidence when there is sufficient explanation for the same. This application was opposed by the Respondent/defendant. The trial Court had rejected the application by relying on the judgments of the Apex Court in Smt. H.Yashoda v. Smt. K.Shoba Rani , [2007 (2) RCR (Clv) 840] , Dhanpat v. Sheo Ram (deceased) through Lrs. and others , [ (2020) 16 SCC 209 ] and Jagmail Singh v. Karamjit Sing and others , [2021 SAR (Civ)86] . Hence, the present revision petition is filed. 4. Heard Sri Akula Vamsi Krishna, learned Counsel for the Petitioner and Sri K.Rama Prasad, learned counsel for the Respondent. 5. The Section 65 of the EVIDENCE ACT contemplates scenarios where secondary evidence can be received in evidence. The scenario provided under Section 65 (c) of the EVIDENCE ACT is applicable to the facts of this case i.e. when the document is lost.
5. The Section 65 of the EVIDENCE ACT contemplates scenarios where secondary evidence can be received in evidence. The scenario provided under Section 65 (c) of the EVIDENCE ACT is applicable to the facts of this case i.e. when the document is lost. The defendant in his written statement is disputing the very execution of the disputed document and from that view point, the receiving and marking of the disputed document would not be of any prejudice to the defence of the defendant. 6. The factum of execution of disputed document and the claim having lost the original document could be established in the course of trial rather than at this interlocutory stage. A similar view was expressed by Hon’ble Supreme Court in Bipin Shantilal v. State of Gujarat , [ 2001 (3) SCC 1 ] . The paragraphs 12 to 16 are relevant and are extracted below: “12. As pointed out earlier, on different occasions the trial judge has chosen to decide questions of admissibility of documents or other items of evidence, as and when objections thereto were raised and then detailed orders were passed either upholding or overruling such objections. The worse part is that after passing the orders the trial court waited for days and weeks for the concerned parties to go before the higher courts for the purpose of challenging such interlocutory orders. 13. It is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection. But the fall out of the above practice is this: Suppose the trial court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the appellate or revisional court, when the same question is re- canvassed, could take a different view on the admissibility of that material in such cases the appellate court would be deprived of the benefit of that evidence, because that was not put on record by the trial court. In such a situation the higher court may have to send the case back to the trial court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves.
In such a situation the higher court may have to send the case back to the trial court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or re-moulded to give way for better substitutes which would help acceleration of trial proceedings. 14. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the judge or magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.) 15. The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence taking stage, would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior court, when the same objection is re- canvassed and reconsidered in appeal or revision against the final judgment of the trial court, can determine the correctness of the view taken by the trial court regarding that objection, without bothering to remit the case to the trial court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses. 16.
We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses. 16. We, therefore, make the above as a procedure to be followed by the trial courts whenever an objection is raised regarding the admissibility of any material or any item of oral evidence.” 7. The above decision, though arising under a criminal case, was consistently quoted with approval by Hon’ble Supreme Court in subsequent reported decisions i.e State v. Navjot Sandhu , [ 2003(6) SCC 641 ] and Dhanpat v. Sheo Ram , [ 2020 (16) SCC 209 ] . However, it was opined that the above decision would not be applicable regarding objections on relevancy of questions in the course of examination of witnesses so that irrelevant and vague questions are brought into record by Hon’ble Supreme Court in Criminal Trials Guidelines Regarding Inadequacies and Deficiencies In re , [ 2021 (10) SCC 598 ] . However, as regards the admissibility and relevancy of the documents, the above quoted judgment holds good. 8. The trap of interlocutory adjudication regarding admissibility and relevancy of documents are stagnating the progress of the suits. Therefore, the order of the trial Court is set aside and the admissibility of the document in question is to be decided while hearing final arguments in the suit. 9. In view of the above, the order of the trial Court is set aside and the civil revision petition is allowed. No order as to costs. As a sequel, the miscellaneous petitions if any shall stand dismissed.