Murtaza Moosavi vs Hemendra V. Shah and Another

V.V.S. Rao, J.—This civil revision petition is filed under Article 227 of Constitution of India by the petitioner aggrieved by the order dated 25-8-2004 in I.A. No. 78 of 2003 in R.C.No. 399 of 2000 on the file of the Court of 11 Additional Rent Controller, Hyderabad.

The brief fact of the matter leading to filing of the civil revision petition is as follows.

The first respondent herein filed a rent control case being R.C. No. 399 of 2000 under the provisions of A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 against the petitioner herein and second respondent on the ground of default in payment of rent, subletting, bona fide requirement and wastage of the property. During the enquiry, the first respondent as P.W.1 admitted that his clerk (Rent Collector) used to maintain registers and make entries of the rents received. Therefore, the petitioner herein filed an application being I.A.No. 132 of 2002 under Order XI Rule 14 of Code of Civil Procedure, 1908 (CPC) seeking a direction to the first respondent herein to produce the register showing the alleged collection of rents. The first respondent filed counter affidavit stating that Rajeswara Rao, the clerk, left the first respondent in May 2000 and that in spite of search he could not find the rent register. For that reason, the petitioner herein filed I.A.No. 78 of 2003 u/s 65 of the Indian Evidence Act, 1872 (the Act, for brevity) seeking leave of the Court of the II Additional Rent Controller, Hyderabad before whom the case is pending to lead secondary evidence u/s 65 of the Act. He wanted to mark Xerox copies of relevant rent register maintained by Rajeswara Rao. His case is that Rajeswara Rao, who was the rent collector, handed over Xerox copies of relevant pages of rent register to the petitioner herein. The application was opposed on two grounds, vix., Xerox copies cannot be received in evidence and that the same are fabricated. The learned Rent Controller dismissed the application on the ground that the ingredients of Section 65 of the Act are not satisfied.

The matter was heard on 22-3-2006 and 23-3-2006. Learned Counsel for the petitioner, Ms. Manjiri S. Ganu, submits that the petitioner has taken necessary steps to procure the original rent register initially by filing an application before the rent controller and that when the first respondent expressed his inability to produce the original rent register, I.A.No. 78 of 2003 was filed to receive Xerox copies of the rent register. Learned Counsel would urge that the conditionalities mentioned in Section 65 of the Act are very much satisfied and, therefore, it is a fit case where the rent controller ought to have accepted Xerox copies. She placed reliance on the judgment of the Supreme Court in Nawab Singh Vs. Inderjit Kaur, .

Per contra, Sri Koteswara Rao, representing Sri Y. Ratnakar, learned Counsel for the first respondent, submits that the petitioner has fabricated Xerox copies of the rent register first by putting signatures on the copy of the page and latter taking photo copies of it and that Xerox copies cannot be exhibited under the Act.

The case of the petitioner herein is that during the cross-examination, first respondent as P.W.1 admitted that rent collector, Rajeswara Rao, used to collect rents and make the entries in a register. Therefore, the petitioner filed I.A.No. 132 of 2002 under Order XI Rule 14 of CPC before the learned Rent Controller to direct the first respondent to produce the original rent register. The first respondent refused to produce the original rent register alleging that in spite of making search, he could not trace it and that Rajeswara Rao left the employment of first respondent abruptly. It is only then the petitioner filed application u/s 65 of the Act. In such a situation, the petitioner herein - as a party summoning the documents from the opposite party; is entitled to file Xerox copies as secondary evidence u/s 65 of the Act. I have considered this aspect of the matter in P. Meharunnissa Begum and Others Vs. P. Noorunnissa Begum and Others, . wherein the facts are similar to the present case and it was observed as under:

A party to a suit can approach the Court for compelling the other side to produce the document in possession of the latter. In such circumstances, it shall be lawful for the Court at any time to give direction to the other side to produce the document to enable the Court to deal with such documents in accordance with law. The exercise of power under Order XI Rule 14 of CPC is, however, subject to condition precedent, namely, the party who is to be ordered to produce document must be in possession or power of the document. When a person denies the allegation that he is in custody of the document the same by itself may not in a given case divest the jurisdiction of the trial Court under Order XI Rule 14 of CPC. Sri Bakshi is right in contending that the Court has to conduct a prima facie enquiry and then arrive at a finding as to whether a party is in possession of the document. It is reasonable to presume that as and when a party is directed to produce a document and such document goes against the case projected or pleaded in the case, by reason of natural human conduct everyone denies the custody of the document. The condition precedent for ordering the production of document can be inquired into with reference to the pleadings and the evidence if any led before the trial Court.

... This Court must observe that having reagard to the submission made by the petitioner''s Counsel for they are in possession of Xerox copy of the order subject to complying with the provision of Sections 65 and 66 of the Act they are entitled to produce secondary evidence and as and when the same is produced, it shall be considered in accordance with law.

(emphasis supplied)

In Nawab Singh (1 supra), the appellant who was a tenant filed a suit for permanent injunction preventing the defendant from interfering with possession. The tenancy was disputed. The appellant then filed an application seeking protection of rent-note from the custody of the respondent. The trial Court rejected the said application. Thereafter, the appellant filed another application seeking leave of the Court to produce secondary evidence of the rent-note. This application was also rejected by the trial Court and the appellant was unsuccessful in the revision before the High Court. The Supreme Court, however, allowed the appeal granting leave to the appellant therein to adduce secondary evidence. The relevant observations are as under.

Having heard the learned Counsel for the parties, we are of the opinion that the trial Court was not justified in rejecting the prayer seeking leave of the Court for production of secondary evidence. The prayer has been rejected mainly on the ground that the copy of the rent note sought to be produced by the appellant was of doubtful veracity. The trial Court was not justified in forming that opinion without affording the appellant an opportunity of adducing secondary evidence. The appellant has alleged the original rent note to be in possession of the respondent. The case was covered by Clause (a) of Section 65 of the Indian Evidence Act, 1872.

Forthe above reasons, this civil revision petition is allowed. The order dated 25-8-2004 in I.A.No. 78 of 2003 in R.C.No. 399 of 2000 passed by the II Additional Rent Controller, Hyderabad is set aside. The petitioner herein is granted leave to adduce secondary evidence of the rent register by producing Xerox copy of the rent register. The validity, legality and probate (sic. probative) value of such evidence will have to be gone into separately by the learned II Additional Rent Controller, Hyderabad, at the time of hearing of the case. There shall be no order as to costs.