Damodaran vs Poongavanam Ammal and Others

S. Rajeswaran, J.—These Civil Revision Petition Nos. 285 and 286 of 2005 have been filed against the common order dated 26.10.2004

passed in I.A. Nos. 713 and 714 of 2004 in O.S. No. 199 of 2004 on the file of the 4th Fast Track Court (Addl. District Court) at Poonamallee.

The 1st defendant in O.S. No. 199 of 2004 on the file of the IV Fast Track Court at Poonamallee (previously O.S. No. 475/1994 filed before

the Sub Court, Poonamallee) is the revision petitioner.

The respondents herein filed O.S. No. 475/1994 for partition and separate possession, for rendition of proper accounts and also for other

reliefs. The defendants in the suit filed I.A. Nos. 713 and 714 of 2004 praying to grant leave to them for the reception of the document, i.e., the

xerox copy of the share certificate dated 29.7.1989 in the name of the 3rd plaintiff (Selvaraj) and they should be recalled to mark the same. This

was seriously objected to by the respondents herein by contending that the application is a belated one and they are not having the original

certificate and as a kartha of the family the revision petitioner alone must be having the original document and he must be directed to produce the

same. The trial court on 26.10.2004 dismissed both the applications on the ground that the revision petitioner has not taken any step to comply

with the statutory requirements under Sec. 65 of the Indian Evidence Act. Aggrieved by the order, the above Civil Revision Petitions have been

filed under Article 227 of the Constitution of India.

Heard the learned Counsel for the revision petitioner. Though notice has been served on the respondents there is no representation either in

person or through counsel.

The learned Counsel for the revision petitioner submitted that the trial Judge has wrongly dismissed the applications and he relied on the

following decisions in support of his submissions:

(1) AIR 1936 15 (Privy Council) .

(2) 2001(1) Cri 288 Bipin Shantilal Panchal v. State of Gujarat and Anr.

(3) Rajathi Vs. Arukkani Ammal,

(4) 2003(3) L.W. 525 Periasamy v. K.Periyasamy and 2 Ors.

(5) 2005 4 L.W. 527 N. Sivamani and Anr. v. Thilagavathy and Anr.

(6) Rathinambal Vs. P. Rajasekaran, P. Dhinesh Kumar and P. Jayalakshmi, .

Documents must be proved by primary evidence exist in the cases as mentioned under Sec. 65 of the Indian Evidence Act. Sec. 65 deals with

cases in which secondary evidence relating to documents may be given. But under Sec. 66 of the Indian Evidence Act secondary evidence shall be

given unless the party proposing to give such secondary evidence has previously given to the party in whose possession such document is, a notice

to produce it as is prescribed by law. If no notice is prescribed by law then such notice as the court considers reasonable under the circumstances

of the case.

In AIR 1936 15 (Privy Council) , the court held as under:

The only purpose of a notice under Sections 65 and 66 of the Act is to give the party an opportunity by producing the original to secure, if he

pleases, the best evidence of the contents. Secondary evidence is admissible when the party offering evidence of its contents cannot for any reason

not arising from his own default or neglect, produce the original document in reasonable time and u/s 66 the Court has absolute power, when it

thinks fit to dispense with a notice under these sections.

In 2001(1) Cri 288 , the Hon''ble Supreme Court held as follows:

Held therefore, 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.)

This judgment was delivered by the Hon''ble Supreme Court in the context of criminal trial proceedings under the NDPS Act without reference

to Sections 65 and 66 of the Indian Evidence Act.

In Rajathi Vs. Arukkani Ammal, , this Court held that a statute does not specifically say that for the purpose of invoking Section 65(1) of the

Indian Evidence Act, one should assert that the document in question is in possession of the party concerned and it is sufficient if the petitioner is

able to demonstrate that the said document appeared to have been possessed by the concerned person.

In 2003 3 L.W.525 cited supra it is held as follows:

The only purpose of a notice u/s 65 and 66 of the Indian Evidence Act is to give the party an opportunity of producing the original document.

Secondary evidence is admissible when the party offering evidence of its contents cannot, for any reason, not arising from his own default or

neglect, produce original document in reasonable time and u/s 66, the Court has absolute power to dispense with the notice when it deems it fit.

Once it is established that the original deeds are being deliberately withheld by the party against whom they are sought to be used, secondary

evidence in respect of those title deeds can be tendered and if the secondary evidence happens to be certified copies of registered document, then

the contents thereof can be read in evidence by virtue of sub-section 5 of Section 57 of Registration Act.

In the above decision this Court observed that once it is established that the original deeds are being deliberately withheld by the party against

whom they are sought to be used, secondary evidence in respect of those deeds can be tendered and if the secondary evidence happens to be

certified copies of registered document, then the contents thereof can be read in evidence. This Court further observed that secondary evidence is

admissible when the party offering evidence of its contents cannot for any reason not arising from his default or neglect, produce original document

within reasonable time and u/s 66 of Indian Evidence Act the Court has absolute power to dispense with the notice when it deems fit.

In 2005-4-L.W. 527 cited supra, this Court held that u/s 65 of the Indian Evidence Act, before secondary evidence of document could be

adduced, it is essential that the procedure in Sec. 66 of the Indian Evidence Act should be complied with and it is necessary that notice must be

given to produce the document.

In Rathinambal Vs. P. Rajasekaran, P. Dhinesh Kumar and P. Jayalakshmi, this Court has held that the rejection of the trial court to refuse to

grant permission for letting secondary evidence for marking xerox copy is correct as the petitioner has not chosen to explain why the xerox copy is

not filed in the list of documents furnished along with the plaint.

In the light of the above decisions let me consider whether the order of the trial court in refusing to permit the revision petitioner to mark the

xerox copy of the share certificate is legally sustainable.

The trial court has observed that a person seeking to receive and mark the xerox copy of a particular document has to satisfy the requirements

laid down under Sec. 65 of the Evidence Act. The trial court further observed that the revision petitioner has not taken any steps to secure the

original documents and he has not complied with the statutory requirements under the Indian Evidence Act.

When the revision petitioner has not complied with the statutory requirements, he cannot be permitted to let in secondary evidence by marking

xerox copy of the share certificate. Even though the learned Counsel for the petitioner has contended that the requirements under the Evidence Act

have been complied with, he is not able to establish the same nor do I find such compliance in the documents filed in the typed set of papers.

Though there is a reference made by the learned Counsel for the petitioner that notice was purported to have been issued under Sec. 66 of the

Evidence Act calling upon the respondents herein to produce the original share certificate, the learned Counsel is not able to show whether the

same was served on the respondents. This notice found place in page 42 of the typed set does not even bear the date as to when it was drafted or

sent. Further in the affidavit filed in support of the applications (I.A. Nos. 713 and 714 of 2004) it was not at all mentioned that a notice was sent

calling upon the 3rd respondent herein to produce the original share certificate. What is stated in the affidavit is that the revision petitioner has

called upon K. Selvaraj, the 3rd respondent herein to produce the original of the share certificate and if he failed to produce then he was entitled to

adduce on his side the document in support of his case. A close reading of that portion in para 10 of the affidavit will make it clear that only in the

affidavit the 3rd respondent has been called upon to produce the original certificate. Therefore I do not find any illegality nor infirmity in the order

of the trial court though some of the words are not correctly worded. The decisions relied on by the learned Counsel for the revision petitioner are

not helpful as the facts are clearly different and distinguishable.

Further I do not find any grave injustice caused to the revision petitioner warranting interference by this Court under Article 227 of the

constitution of India. Consequently, the Civil Revision Petition is dismissed. No costs. C.M.P. No. 2773/2005 is also dismissed.