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K. VIJAYARENGAN versus S. R. RENGAN

High Court of Madras

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K. Vijayarengan v. S. R. Rengan - CRP (PD) (MD) No.621 of 2007 [2007] RD-TN 1394 (11 April 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 11/04/2007

CORAM:

THE HONOURABLE MR.JUSTICE S.NAGAMUTHU

CRP (PD) (MD) No.621 of 2007

and

M.P.(MD) No.1 of 2007

K. Vijayarengan ... Petitioner

Vs

1. S. R. Rengan

2. Sridhar Rangan ... Respondents

Prayer

Civil Revision Petition has been filed under Article 227 of the Constitution of India to set aside the fair and decreetal order dated 06.12.2006 made in I.A.No.431 of 2006 in O.S.No.59 of 1998 on the file of the the District Munsif cum Judicial Magistrate Court, Lalgudi.

For Petitioner .... Mr.R. Sundar

:O R D E R



Considering the limited prayer made in the Civil Revision Petition, this Civil Revision Petition is disposed of even without issuing notice to the respondents as the order proposed to be passed in this Civil Revision Petition will not cause any prejudice to the respondents.

2. This Civil Revision Petition has been filed challenging the order dated 06.12.2006 made in I.A.No.431 of 2006 in O.S.No.59 of 1998 on the file of the the District Munsif cum Judicial Magistrate Court, Lalgudi.

3. The respondents herein are the plaintiffs in O.S.No.59 of 1998 on the file of the District Munsif cum Judicial Magistrate Court, Lalgudi and the petitioner is the defendant. The respondents herein have filed the above suit for a decree directing the petitioner/defendant to deliver possession of the suit land to them in default the respondents/plaintiffs to take possession of the suit land through Court and also for past profits for the year 1997-98 and other reliefs. The petitioner/defendant has filed a detailed written statement. During the pendency of the same, the respondents/plaintiffs have filed I.A.No.431 of 2006 for seeking leave to produce the photocopies of the document namely the sale agreement dated 30.10.1996 and to receive the same in evidence. The petitioner/defendant has opposed the same by filing a detailed counter. Having considered the materials available on record, the learned District Munsif by order dated 06.12.2006 has allowed the said I.A. Challenging the said order this Civil Revision Petition has been filed.

4. Heard both sides.

5. In support of the I.A., the first respondent/plaintiff has filed an affidavit wherein he has stated that the petitioner/defendant entered into a sale agreement dated 30.10.1996 thereby agreeing to sell the suit property and the same was reduced into writing in duplicate, leaving one copy with each party. It is the further statement of the first respondent that the original written sale agreement which was in his possession was handed over by him to one Mr.Nagarajan of Trichy and subsequently Mr. Nagarajan lost the same along with a suitcase. He has further stated that regarding the said incident, a complaint has been given to the police. According to him, since the original sale agreement is not available with him and the same has been lost, he seeks leave to produce a xerox copy of the sale agreement which he possess as secondary evidence.

6. In the counter filed, the petitioner has stated that he does not have the original sale agreement as no such sale agreement was handed over to him. In the plaint itself, there is a specific mention made about the said sale agreement and along with the plaint a xerox copy of the sale agreement has also been produced. In Paragraph 6 of the plaint, it has been specifically stated that on 30.10.1996 an agreement for sale was entered into. In the written statement, the petitioner herein has not denied the execution of the said sale agreement. As a matter of fact, in Paragraph 4 of the written statement, the petitioner/defendant has stated that there is no necessity for him to answer the allegations in Paras 4,5,6 and 7 of the plaint. Thus, there is no specific denial about the execution of the above sale agreement about which mention is made in Para 6 of the plaint. The only denial made in Para 5 of the written statement is that he was not supplied with the duplicate of the original sale agreement.

7. Thus, it is almost an admitted case of the parties that there was a sale agreement dated 30.10.1996 and the same was reduced into writing. It is also the admitted case that the original sale agreement was in the custody of the first respondent/plaintiff. The only fact which is in dispute is that according to the petitioner/defendant, the duplicate of the sale agreement was not left with him.

8. The learned counsel for the petitioner would contend that the xerox copy which is sought to be produced in evidence falls under the category of secondary evidence since the original is not available for the purpose of comparison as required in Section 63(3) of the Indian Evidence Act and therefore according to him, the xerox copy which is available in the case cannot be allowed to be proved in evidence. But the said argument deserves to be rejected for the simple reason that Sec.63(3) of Indian Evidence Act is not applicable to a xerox copy. The appropriate provision would be only Sec.63(2) of the Indian Evidence Act. There can be no doubt that a xerox copy is the one obtained from the original by mechanical process and the accuracy of the same is assured of, unless a manupulation is shown to have been caused in the preparation of the xerox copy. Sec.63(3) of the Indian Evidence Act deals with copies made from the originals and compared with the originals. Typed copies, handwritten copies etc., where the accuracy is not assured of unless the original is used for the purpose of comparison, would alone fall qwithin the ambit of Sec.63(3). Therefore a xerox copy obtained from original by mechanical process squarely falls only within the ambit of Sec.63(2) of the Act so as to be defined as secondary evidence. In the case on hand, the accuracy of the document has not been challenged in the counter and even if any such challenge is made the same could be made when the document is sought to be proved through a witness by way of cross Examination. In the light of the fact that there is no denial that the original sale agreement was in the custody of the respondents/plaintiffs and also in the light of the fact that there is no denial about the accuracy, it has to be necessarily held that the document in question is admissible in evidence as secondary evidence, provided the other conditions in Sec.65 of the said Act are satisfied.

9. The learned counsel for the petitioner would contend that assuming that the xerox copy available in the case falls within the definition of secondary evidence still it is not admissible in evidence since the respondents have not satisfied the requirements under Sec.65(a) as well as Sec.65(c) of the Indian Evidence Act. According the learned counsel, to satisfy the legal requirements under Sec.65(a) of the Indian Evidence Act, the respondents should have issued notice to the petitioner to produce the original which is allegedly in the custody of the petitioner and if only the notice is not responded properly, the respondents can produce the xerox copy as secondary evidence. But the said argument also deserves to be rejected for the following reasons:

10. In the case on hand when it is the definite case of the petitioner/defendant that the original sale agreement is not in his possession, then there would be no purpose in issuing notice by the respondents under Sec.65(a)of the Indian Evidence Act requiring him to produce the same. If any such notice is expected to be given in this case, then it would be nothing but an empty formality. The very object of Sec.65(a) of the Indian Evidence Act is to secure the best evidence available namely the primary evidence. If it is admitted that the primary evidence is available in the hands of the opposite party, to have the best evidence, notice should be given to him to produce the same before the Court and if he fails to do so, then the secondary evidence can be allowed to be let in.

11. In the case on hand, since it is well known from the written statement, in the counter of the petitioner/defendant that the original is not available with him then it is unnecessary to insist for notice as such notice is not going to bring on record the best evidence viz. the primary evidence. In these circumstances, therefore I am of the view that no such notice is required and instead, straight away the secondary evidence can be allowed to be produced. At the same time, it should not be construed that invariably in all cases, no such notice is required. In cases where there are circumstances available to show that the primary evidence is available in the hands of the other party, such notice is necessary.

12. In a case on similar facts, this Court in D. Sarasu Vs. Jayalakshmi and 2 others reported in 2001(4) C.T.C. Page 266 has held in Para 11 as follows:

"Para 11. After stating that the plaintiffs clearly made a reference to Ex.1 in the plaint, defendants 1 and 2 denied the existence of such a document. The question of calling for documents from them does not arise and held that Exhibit 1 cannot, therefore, be said to be inadmissible in evidence due to the absence of primary evidence."

The view expressed in the said case squarely applies to the facts of the instant case also. Therefore the contention of the learned counsel for the petitioner that for want of notice under Sec.65(a) of the Indian Evidence Act, the document in question is inadmissible is rejected.

13. The next contention of the learned counsel for the petitioner is that under Sec. 65(c) of the said Act, the respondents should have proved that the loss of the document was not due to his default or neglect. The learned counsel would rely on the judgement of this Court in K. Ashraff Vs. S. Gangaraman reported in 2006(5) C.T.C. Page 36 has held in Para 14 as follows: "Para 14. As stated supra, the averment in the petition to receive the documents is that, "the documents enlisted hereunder are mixed up with other documents" and hence he was unable to produce them along with the written statement. There is absolutely no pleading as to whether there was any bona fide search. The words "lost or destroyed" are clear, unambiguous and are susceptible to only one meaning, "Mixed up with other documents" does not mean 'lost' to invoke section 65(c) of the Evidence Act. The said Section contemplates that secondary evidence is not permissible "for any reason arising from his own default or neglect." In the above said circumstances, Xerox copy of the unregistered Lease Deed, Dated 7.7.1989 cannot be received as evidence, much less for collateral purposes."

But on facts, the said judgement is not applicable to the facts of our case. In that case, the original was only mixed up with other documents. This Hon'ble High Court therefore held that the petitioner should have made every effort to search for the document and in the absence of any such search, the xerox copy can not be received by the Court. But in our case, it is a specific case of the respondents that the document was lost in transit along with a suitcase and rightly a complaint has been given to the police. More than that one cannot expect, the respondents to go in search of the documents to various places. It would suffice for him to prefer a compliant which would satisfy the requirements of Sec.65(a) of the Indian Evidence Act. It is also not a case of the petitioner that the original was lost either due to default or neglect of the respondents. In fact, there is no specific denial in the counter about the loss of the original. For all the above reasons, I am of the view that the respondents have satisfied Sec.63, 65(a) and 65(c) of the Indian Evidence Act.

14. The learned District Munsif has considered all the above points carefully and has rightly come to the conclusion that the xerox copy sought to be produced in this case, is admissible as secondary evidence. But the finding of the learned District Munsif that the document in question falls within the definition of Sec.63(3) is not correct. As stated above, it falls under Sec.63 (2) of the Indian Evidence Act. In all other aspects the order of the order of the lower Court deserves to be upheld.

` 15. In conclusion, I hold that the Court below is right in holding that the xerox copy produced along with the plaint in the instant case is admissible as secondary evidence. So, I find no reason to interfere with the order of the lower Court and the same is therefore confirmed.

14. In the result, this Civil Revision Petition is dismissed. No Cost. Consequently, connected M.P. is also closed.

To

The District Munsif cum Judicial Magistrate Court, Lalgudi.




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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