Hulas Devi vs Raj Kumar and Others

Prakash Tatia , J.—Heard learned Counsel for the petitioner.

Petitioner is aggrieved against the order of the trial Court dated 9th August, 2004 by which the trial Court allowed the application of the respondents fifed u/s 65 of the Indian Evidence Act.

The brief facts of the case are that the petitioner plaintiff filed a suit for redemption of mortgage dated 7th May, 1982. Before the trial Court defendant submitted his written statement and took the plea that said mortgage redeemed and for that purpose necessary endorsement was made on the original mortgage deed itself. The defendant alleged that the original mortgage deed having endorsement of redemption of mortgage is lying with the plaintiff petitioner. The defendant submitted an application under Order 11 Rule 12 CPC on 9th August, 1999 and sought direction from the Court for production of the original mortgage deed by the plaintiff. The plaintiff submitted that the original mortgage deed is tying with the defendant himself. The defendant also submitted an application u/s 65 of the Evidence Act and prayed that the Photostat copy of the original mortgage deed containing the endorsement of redemption mortgage may be admitted in evidence as secondary evidence as plaintiff has not produced the original mortgage deed. The trial Court has dismissed the application dated 24th April, 2001 filed by the defendant u/s 65 of the Evidence Act only on the ground that copy which was produced by the defendant cannot be admitted in evidence as above copy is not either certified copy or correct and true copy of the original document which can be admitted in evidence in view of Section 63 of the Evidence Act. While rejecting the defendant''s application, the trial Court observed that defendant may obtain certified copy of the mortgage deed, obviously, from the office of registering authority, and may produce the same in Court upon which permission to produce document is Secondary evidence may be granted.

The defendant respondent instead of producing the certified copy of the mortgage deed, challenged the order of the trial Court dated 24th April, 2000 by filing S.B. Civil Revision Petition No.847/2001. The said revision petition was dismissed on 13th December, 2001 on the ground that defendant should have produce certified copy of mortgage deed.

It is worthwhile to mention here that the plaintiff himself produced certified copy of the original mortgage deed alongwith the application u/s 65 of the Evidence Act, and accordingly, learned Counsel for plaintiff petitioner''s said application was allowed by the trial Court, therefore, the position is that the certified copy of the original mortgage deed is on record of the trial Court, though, produced by plaintiff petitioner himself.

The defendant respondent again submitted application u/s 65 of the Evidence Act seeking permission to produce the Photostat copy of the mortgage deed dated 7th May, 1985 with a plea that, though, earlier also the defendant submitted application u/s 65 of the Evidence Act and sought permission to produce the deed in question but that prayer was disallowed by the trial Court and order of the trial Court has been upheld by the High Court. The defendant submitted that now certified copy of the mortgage deed has already been produced by the plaintiff but since "copy of the original mortgage deed with endorsement of redemption of mortgage" is the document relevant for the purpose of proving defence of the defendant is not available with the defendant and the trial Court as well as High Court has not passed any order on the document "endorsement of redemption of mortgage", therefore, after the production of the certified copy of the mortgage deed by the plaintiff, the matter can be again considered by the trial Court, as observed by the trial Court itself in its order dated 24th April, 2001.

Learned Counsel for the petitioner vehemently submitted that once petitioner''s application u/s 65 of the Evidence Act seeking same relief has been dismissed by the trial Court and order of dismissal on the petitioner''s application was upheld by the High Court in revision, the second application for the same relief was not maintainable. It has also submitted that the defendant sought permission to produce the document containing the endorsement of redemption of mortgage and plaintiff petitioner very specifically raised objection that the endorsement of redemption of mortgage deed also requires registration and since the said endorsement has not been registered, therefore, the document "endorsement of redemption of mortgage" is inadmissible in evidence. After the rejection of the defendant non-petitioner''s earlier application, the defendant non-petitioner by second application is again seeking the same relief, despite the fact that the documents itself is inadmissible in evidence.

I considered the submission of the learned Counsel for the petitioner. It is true that defendant submitted an application u/s 65 of the Evidence Act on earlier occasion and sought permission to produce the document "endorsement of redemption " and that application was rejected by the trial Court. It is also true that the petitioner plaintiff raised objection about the admissibility of the "endorsement of redemption" on the ground that endorsement requires registration but it is clear from the order of the trial Court dated 24th April, 2001 that the trial Court did not decide the issue of admissibility of the "endorsement" nor rejected the defendant''s application filed u/s 65 of the Evidence Act on the ground that the defendant may produce the certified copy of the "endorsement of redemption of mortgage". The above order as passed by the trial Court appears to persuaded before this Court to observe that defendant unnecessarily not producing the certified copy of the mortgage deed, which is obviously because of the reason that the trial Court failed to notice that the defendant cannot get the certified copy of the endorsement. The observation of the trial Court as well as observation of High Court clearly reveals that that was the order passed only with respect to mortgage deed by which mortgage was created, that order cannot be treated as order passed on seeking permission to produce "endorsement of redemption of mortgage" because of the simple reason that had the Courts on earlier occasion considered this prayer of the defendant, they could not have directed the petitioner to obtain certified copy of the mortgage deed and produce in Court because that deed could not have any endorsement of "redemption of mortgage" over it. Even if the certified copy of the mortgage deed would have been produced by the defendant, the document containing endorsement of redemption of mortgage would not have come on record.

Therefore, the second application filed by the defendant u/s 65 of the Evidence Act was rightly considered by the trial Court to be application seeking permission to produce a document "endorsement of redemption of the mortgage" in question. The trial Court, in the facts and circumstances of this case, when the plaintiffs case is that original mortgage deed is lying with the defendant and defendant is saying original mortgage deed is lying with the plaintiff, rightly permitted defendant to produce the secondary evidence for the document "endorsement of redemption of mortgage". However, the plaintiff shall have, obviously, right to challenge the credibility of the document.

So far as objection about admissibility of the document "endorsement of redemption of mortgage" is concerned, certainly that question was not considered by the Courts, either by the trial Court while deciding application u/s 65 of the Evidence Act by order dated 24th April, 2001 or by this Court while deciding the revision against the said order vide order dated 13th December, 2001 or even now when second application u/s 65 of the Evidence Act was filed by the defendant and decided by the trial Court by the impugned order.

Since, trial Court itself has not applied the mind about the admissibility of the "endorsement of redemption of mortgage", therefore, plaintiff shall have every right to raise objection about the admissibility of the document "endorsement of redemption of mortgage" when the document will be tendered in evidence by the defendant and at that time that objection can be decided by the trial Court. Since, presently, by the impugned order, trial Court has granted relief of admit the document as secondary evidence only and has not applied its mind to admissibility of the document in evidence, therefore, this Court finds no illegality in the impugned order, hence, there is no reason to interfere with the order, leaving it open for the petitioner to raise objection about the admissibility of the document at the time of tendering the document in evidence to prove redemption of mortgage with the help of the endorsement.

In view of the above, the writ of the petitioner has no merit, hence, dismissed.