Raghupathy Poojar vs The State of Karnataka

S. Abdul Nazeer

Petitioner is plaintiff No. 5 in O.S.No. 104/2003, on the file of the Addl. Civil Judge Senior Division at Raichur and the respondents are the defendants in the suit. The plaintiffs filed the above suit for declaration that they are the owners of the suit schedule property and for certain other reliefs. The defendants have filed their written statement in the suit. The plaintiffs have already let in their evidence. When the suit is posted for evidence of the defendants, defendant No. 3 (respondent No. 3 in this writ petition) filed an application under Sections 63 and 65 of the Indian Evidence Act, 1872, seeking permission of the Court to produce secondary evidence. The said application has been allowed by the Trial Court by order dated 31.07.2012. The petitioner has called in question the validity of the said order in this case. Learned Counsel for the petitioner contends that the question of filing an application by defendant No. 3 seeking permission to lead secondary evidence does not arise. He has to step into the witness box and lead evidence setting out the circumstances under which he is unable to produce primary evidence. In this connection, he has relied on the decision of this Court in Gafarsab @ Sati Gafar Sab Vs. Ameer Ahamed, .

On the other hand, Learned Government Advocate appearing for respondent Nos. 1 and 3 has sought to justify the impugned order.

This Court in GAFARSAB''S case (supra) has held that:

A party to the proceedings is not expected to file any application requesting the Court to permit him to lead the secondary evidence. All that is expected of him is to step into the witness box and lead evidence setting out the circumstances under which he is unable to produce the primary evidence. If the court is satisfied from such evidence that a case is made out for production of secondary evidence, it can permit the party to adduce secondary evidence subject to Sections 63 and 65 of the Act. However, when such permission is granted to the party by the Court to lead secondary evidence, it is open to the opposite party to object to the production of such secondary evidence, in which event the Court has to mark the document subject to the objections and decide the objections at the time of final disposal of the suit on merits. In the event the objection is upheld the said documents and the evidence adduced in respect of the said documents may be ignored while deciding the case on merits. If the objection is over-ruled, the said documents and the evidence given in respect of the said documents can be taken into consideration while disposing of the case on merits. But, on the ground that the party who proposes to adduce secondary evidence has not disclosed from where, which authority he got the documents and whether the said documents are coming from a proper custody, the document cannot be refused to be received in evidence. It is totally irrelevant consideration at the time of admitting the documents in evidence.

In the circumstances, the application filed by the 3rd defendant seeking permission to produce secondary evidence is totally irrelevant. If the 3rd defendant wants to lead secondary evidence, he has to depose before the Court the circumstances under which he is unable to produce primary evidence. If defendant No. 3 makes out a case for production of secondary evidence, the Court below can permit the party to adduce secondary evidence subject to Sections 63 and 65 of the Evidence Act. The writ petition succeeds and it is accordingly allowed. The order dated 31.07.2012 in O.S.No. 104/2003 on the file of the Addl. Civil Judge Senior Division at Raichur, is hereby quashed reserving liberty to the third defendant (third respondent herein) to lead secondary evidence in accordance with law. No costs.