Sitaram Satapathy vs Hareram Satapathy and Others

Biswanath Rath, J. Â

1.This civil miscellaneous petition involves a challenge to the order dated 4.01.2018 passed by the learned Civil Judge (Sr. Divn.), Bolangir in civil Suit

no.53 of 2007.

Short background involved in this case is that the opposite party no.1 as the plaintiff filed Civil Suit No.52 of 2007 in the court of learned Civil Judge

(Sr. Divn.), Bolangir for partition of the suit property involving the defendants.

Leaving apart the unnecessary details involving the suit as the same are unnecessary for the purpose of determination of the civil miscellaneous

petition, this Court only confines the facts involving the miscellaneous petition involved therein. The defendant no.13 the present petitioner entering his

appearance in the suit filed the written statement challenging the plaint allegations specifically submitting that the suit properties are not the joint family

property of the parties, that there has been a partition effected in the family, the Schedule ‘A’ property is self acquired property of the Late

Nilamani and his wife and the parties are leaving separately with separate cooking. During pendency of the suit, there is an amendment to the plaint

requiring the present petitioner the defendant no.13 to file additional written statement. The trial court deputed an advocate commission for

examination of the defendant no.13 who was seriously ill at the relevant point of time. Consequent upon this, the petitioner filed an affidavit before the

Advocate Commission. Petitioner simultaneously also filed a petition in the court below on 6.8.2017 stating that the defendant no.13 has relied on the

loan document of the plaintiff Hareram Satpathy in the written statement. It is also contended that on asking for a copy of the same under the

provisions of the Right to Information Act, the Bank Authority in their letter dated 12.08.2016 and the letter dated 11.11.2016 communicated the

petitioners that the document required has already been returned to the plaintiff/Hareram Satpathy. It is, thus, contended that since the document are

in possession of the Plaintiff, the defendant no.13 is not in a position to produce the same and in the interest of justice, for the petitioner’s having a

Xerox copy of the loan document, the defendant no.13 i.e. the petitioner prayed for permission for secondary evidence involving the said document. At

a subsequent date on 1.09.2017 the petitioner filed another petition seeking a direction to the plaintiff to produce the original loan documents returned

to him by the CARD Bank Ltd. Plaintiffopposite party no.1 filed objection to the said petition stating therein that the said document is not in possession

of the plaintiff as the same has never been returned to him.

Considering the rival contentions of the parties, the trial court vide its order dated 4.01.2018 taking into account both the applications together as

well as the objection raised by the plaintiff rejected the application at the instance of the defendant no.13 the present petitioner on the premises that

there is no laying of proper foundation for either, directing the plaintiff to file the concerned document or to adduce the secondary evidence.

Challenging the impugned order Shri Nanda, learned counsel for the petitioner taking this Court to the applications filed by him as find place at

Annexure-8, the subsequent application dated 1.09.2017 and further taking this Court to the information of the CARD Bank to the asking of the

petitioner for providing a certified copy of the loan document involved herein, contended that even though the petitioner has satisfied all the ingredients

requiring a case of secondary evidence, the trial court has measurably failed to appreciate the same and thus, has arrived at the illegal and erroneous

impugned order.

For the definite relation with the documents involved herein, Sri Nanda contended that in the interest of justice and for the request as well as the

objection involved therein, the trial court should have found out a way to ensure production of the document and in absence of which at least allowed

the petitioner to have the scope of secondary evidence. It is under the circumstance, learned counsel for the petitioner prayed this Court for interfering

in the impugned order and setting aside the same.  Shri Nanda, learned counsel for the petitioner also relied upon a decision of the Hon’ble Apex

Court in the case of Nawab Singh versus Inderjit Kaur as reported in AIR 1999 Supreme Court, 1668 and claimed that this decision has direct support

to the case of the petitioner.

To the contrary, Shri S.K. Mishra, learned counsel for the opposite party no.1 i.e. the plaintiff taking this Court to the attempt of the defendant

no.13 in the court below submitted that for the specific stand of the plaintiff that the document sought to be taken through the secondary evidence was

not available with him, the defendant no.13 was required to satisfy the contingency involving the Section 65 of the Indian Evidence Act before asking

the court for secondary evidence. Taking this Court to the provision contained in Section 65 of the Act, Shri Mishra, learned counsel for the opposite

party further contended that in absence of satisfaction of the contingency in the Section 65 of the Act, there appears, the trial court has reasonably

considered the issue involved and thus, has rightly rejected the request of the present petitioner i.e. the defendant no.13. Taking reliance of the

decision in the case of Smt. J. Yashoda versus Smt. K. Shobha Rani as reported in 2007(II) OLR (SC) 166 learned counsel for the opposite party

no.1 contended that the decision referred to hereinabove, has clear support to the case of the opposite party as well as to the impugned order making

no ground for interfering in the same by this Court.

Finding that the case involved the application for leading to introduce secondary evidence by the defendant and the admitted fact that there is a

strong reliance of the said document by one of the party involved and further finding that even though the Bank authority in writing indicated the

petitioner that the document has already been returned to the plaintiff but at the same time, the plaintiff denied to be in possession of the said

document, it appears, the question required to be determined here is, whether in such contingency, a party is entitled to have the scope of secondary

evidence or not? Coming to the contingency necessitating requirement of secondary evidence, this Court perused the provisions contained in Section

63, 65(A) and 66 of the Indian Evidence Act, 1872, which are reproduced as herein below:

 “63. Secondary evidence.-Secondary evidence means and includes-

(1) Certified copies given under the provisions hereinafter contained;

(2) copies made from the original by mechanical process which in themselves insure the accuracy of the copy, and copies compared with such copies;

(3) copies made from or compared with the original;

(4) counterparts of documents as against the parties who did not execute them;

(5) oral accounts of the contents of a document given by some person who has himself seen it.â€​

65 Cases in which secondary evidence relating to documents may be given.-Secondary evidence may be given of the existence, condition, or contents

of a document in the following cases:-

(a) When the original is shown or appears to be in the possession or power-

Of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of

any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;

 “66. Rules as to notice to produce.- Secondary evidence of the contents of the documents referred to in section 65, clause (a), shall not be given

unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, [or to his

attorney or pleader,] such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers

reasonable under the circumstances of the case; Provided that such notice shall not be required in order to render secondary evidence admissible in

any of the following cases, or in any other case in which the Court thinks fit to dispense with it:-

(1) when the document to be proved is itself a notice;

(2) when, from the nature of the case, the adverse party must know that he will be required to produce it;

(3) when it appears or is proved that the adverse party has obtained possession of the original by fraud or force;

(4) when the adverse party or his agent has the original in Court;

(5) when the adverse party or his agent has admitted the loss of the document;

(6) when the person in possession of the document is out of reach of, or not subject to, the process of the Court.†Reading of the provision at Section

63 of the Act, it appears, the secondary evidence as stated in the Sub-section 2 & 3 of Section 63, a Xerox copy undoubtedly can be received as a

secondary evidence. Similarly, reading of the provisions at Section 65(A) of the Act, it reveals, once a document appears to be in possession or power

of a person against whom, the document is sought to be proved or of any person out of reach of or not subject to the process of court and taking

resort to the procedure contained in Section 66, and in the event, custodian of such document fails to produce such document, then the court taking

resort to the provision contained in Section 65 of the Act is required to allow the request for secondary evidence involving such document.

Now coming to the factual background involving the case at hand, this Court finds, the petitioner filed two applications one on 6.8.2017 clearly

bringing forth the pleadings relying on such document involving the plaintiff and that the attempt of the petitioner for procuring the copy of such

document through R.T.I. Act having failed with an answer of the temporary custodian of the document that the Bank authority with a clear refusal

stating that the document has been returned obviously goes without saying that the document has been returned to the party concerned the plaintiff

and further, finding from the objection of the plaintiff the actual owner of such document making a clear statement in his objection vide annexure-9

that the document sought to be introduced through the secondary evidence is not available and not in possession of the plaintiff and that such

document was not returned to him by the CARD Bank, this Court here finds, there was no scope available for the defendant no.13 the present

petitioner to go to the extent of requesting the trial court for production of the document either from the custody of the plaintiff or the temporary

custodian in exercise of power under Section 66 of the Indian Evidence Act. It is under the circumstance, this Court finds, the petitioner has satisfied

all the ingredients of the Section 63 as well as Section 65 as well as Section 66 of the Indian Evidence Act. Further, there is no scope for exercise of

power under the provision under Section 66 of the Indian Evidence Act.

Coming to the judgment cited by both the parties, this Court reading of the judgment vide AIR 1999 SC 1668 finds, the attempt was made in the

trial court seeking production of the particular document from the custody of the respondent in the Hon’ble Apex Court and on the next date of

hearing, the plaintiff in the suit filed an application seeking production of the particular document from the custody of the defendant and the application

having been rejected on the next date of hearing, the plaintiff moved an application seeking leave of the court for production of secondary evidence.

This application was also rejected by the trial court.  In the above contingency the Hon’ble Apex Court taking into account the factual scenario

available therein particularly on forming of opinion on the documents sought to be produced by way of secondary evidence, set aside the impugned

order and observed that the trial court was not justified in forming an opinion without affording the appellant an opportunity of adducing secondary

evidence. Coming back to the decision cited by the learned counsel for the petitioner vide 2007(II)OLR(SC)166, this Court finds, the case involved

therein involves a question on marking of some documents as secondary evidence. Hon’ble Apex Court taking into account the factual scenario

available therein and for no satisfaction of the ingredients involving the clause (a) of the Section 65 of the Indian Evidence Act, was pleased to reject

the move before the Hon’ble Apex Court involving an order of the High Court rejecting the claim for secondary evidence in the premises of no

possibility of producing the document being compared with the originals.

For the fact involving the case at hand, such as the actual custodian of the document has a case that he has submitted the document with the

CARD Bank, the CARD Bank in dealing with a matter under the provision of the R.T.I. Act clearly observes that the document sought for had

already been sent back to the custodian of the document, and the custodian of the document having boldly saying that he is not in receipt of the

document from the CARD Bank, this Court observes, production of the original in the given circumstance becomes impossible. For the difference in

the fact scenario, the decisions cited at Bar have no application to the case at hand. It is at this stage, taking into consideration the document depended

by the defendant no.13 and having specific pleading involving such document thereon in the written statement, the defendant no.13 is permitted to

adduce secondary evidence involving the particular document. It is at this stage this Court also observes, if the relief involving adducing secondary

evidence is not granted to the petitioner i.e. the defendant no.13, there will not only be serious prejudice to the defendant but there may not be also

effective adjudication of the suit.

This Court observes, for the clear denial by the Bank authority as well as the plaintiff that they are not in custody of such document, it becomes

futile on the part of the defendant no.13 asking either the Bank authority or the plaintiff for production of such document in exercise of power under

Section 66 of the Indian Evidence Act.

Perused the impugned order. Â

For the observations made hereinabove and findings thereon, this Court finds, there is no proper appreciation of the issue involved by the trial court

involving the impugned order and the reasons assigned therein are not sustainable in the eye of law.

In the above circumstance, this Court interfering with the impugned order vide Annexure-1, sets aside the same and allows the request of the

defendant no.13-the present petitioner to go ahead with adducing secondary evidence involving the documents involved therein. The plaintiff will have

the chance of cross examination.

The civil miscellaneous petition thus succeeds. However, in the circumstance, there is no order as to cost.