Madras High Court
P.K.Pandian vs Komala on 10 July, 2008
Equivalent citations: AIR 2009 MADRAS 51, 2009 (4) ALL LJ NOC 667, 2009 (4) ABR (NOC) 818 (MAD), 2009 (3) AJHAR (NOC) 870 (MAD), 2009 AIHC NOC 428, (2008) 6 MAD LJ 782, (2008) 4 MAD LW 1014
Author: K.K.Sasidharan
Bench: K.K.Sasidharan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.07.2008 CORAM: THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN C.R.P.(PD)No.3645 of 2007 and M.P.No.1 of 2007 P.K.Pandian : Petitioner Vs. Komala : Respondent PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of India against the order dated 12.06.2006 passed in O.S.No.488 of 1996 on the file of the District Munsif, Ponneri holding that the certified copy of the power of Attorney dated 29.01.1993 filed on the side of the petitioner as Document No.1 is not admissible in evidence being secondary evidence. For Petitioner : Mr.N.R.Anantha Ramakrishnan For Respondent : Mrs.V.Tamizh Selvi ******* ORDER
****** This civil revision petition is directed against the order dated 12.06.2006 in O.S.No.488 of 1996 on the file of District Munsif, Ponneri, in and by which the document No.1 produced by the revision petitioner was rejected by the learned District Munsif, Ponneri on the ground that certified copy of power of attorney cannot be admitted in evidence.
2. The suit in O.S.No.488 of 1996 has been preferred by the revision petitioner against the respondent before the trial Court praying for a decree of permanent injunction restraining the respondent, her men and agents and servants from alienating the plots in the suit property to any person in any manner and for awarding cost.
3. The factual matrix necessary for disposal of the civil revision petition are as under:
(i) The respondent, being the original owner of the suit property, entered into an agreement with the revision petitioner to develop the property and to sell it to third parties by plotting out the same and accordingly, a registered power of attorney was executed in favour of the revision petitioner by the respondent on 29.01.1993. The said power of attorney was registered before the Sub-Registrar, Tamil Nadu Registration Department, Ponneri. As per the said power of attorney, the petitioner was appointed as the general power of attorney. The entire market value of the property has been paid by the petitioner to the respondent simultaneous with the execution of power of attorney on 29.01.1993. Accordingly, the property was divided into 26 plots by forming a road and laying stones after spending a huge amount for reclamation by the petitioner. All the 26 plots were sold to different people and the sale deeds were registered on the basis of the power of attorney executed by the respondent. While so, the petitioner received a notice dated 21.02.1995 from the respondent informing him that the general power of attorney has been revoked as per document dated 20.02.1995. Subsequently, there were mediation between the parties. However,the same did not materialise and when the petitioner found that the respondent made arrangement to sale the plots to third parties, he was constrained to file the suit for permanent injunction.
(ii) The suit was resisted by the respondent on the ground that no consideration has been received by her for executing the power of attorney and the sale deed alleged to have been executed by the petitioner was not binding on her. It was further indicated in the said written statement that the revision petitioner, who got property on the east and west of the respondent's property in S.No.348/2D, contacted the respondent through her husband and requested her to leave a portion of the property on the southern side for necessary access for the plots so developed on the east as well as on the west. The property was subsequently developed by the respondent measuring 2.96 acres and a power of attorney was given to the revision petitioner on 29.01.1993 only in respect of the southern 50 cents out of 2.96 acres. However, subsequent to the registration of the power of attorney, the revision petitioner in collusion with the officials of the Registration Department seems to have changed the extent in the power of attorney to appear as if the extent is 1.50 acres on the southern side out of 2.96 acres in S.No.348/2D. Accordingly, it was the contention of the respondent that the petitioner has no manner of right or interest in respect of the northern 1.46 acres out of the total extent of 2.96 acres in S.No.348/2D and accordingly, the respondent prayed for dismissal of the suit.
(iii) The matter was subsequently posted for evidence and a proof affidavit on the side of the revision petitioner was filed on 21.06.2006. Along with the proof affidavit, the document No.1, a certified copy of the power of attorney stated to have been executed by the respondent in favour of the revision petitioner has also been marked. The marking of the said document was objected to by the respondent on the ground that the original has to be produced and the secondary evidence is not permissible.
(iv) The petitioner contended before the trial Court that the original was lost and the same was also mentioned in the plaint as well as in the proof affidavit and as such, he was entitled to lead secondary evidence.
(v) The matter was considered by the learned trial Judge and having found that no factual foundation was laid in the plaint in respect of the loss of original, the learned trial Judge was pleased to reject the said document holding that the said document cannot be admitted in evidence.
(vi) It is the said order dated 12.06.2006 rejecting the power of attorney as inadmissible, which has been challenged in the present revision.
4. I have heard Mr.N.R.Anantha Ramakrishnan, learned counsel appearing for the revision petitioner and Mrs.V.Tamizh Selvi, learned counsel appearing for the respondent.
5. The learned counsel for the revision petitioner submitted that the evidentiary value of a document is to be decided only at the time of trial and there is no legal prohibition in receiving the document subject to proof and relevancy.
6. Per contra, the learned counsel for the respondent contended that there were material alteration in the power of attorney and the revision petitioner committed forgery in collusion with the officials of the Registration Department and accordingly, the extent was corrected as if 1.50 acres of property was given to the revision petitioner by way of the power of attorney. It was the further contention of the learned counsel that there was no proper explanation for the loss of original and unless and until the loss of the original is accounted for, the revision petitioner cannot be permitted to produce secondary evidence. The learned counsel also relied on the judgment of the Apex Court in Yashoda, J. v. K.Shobha Rani reported in 2007(3) CTC 781 as well as the judgment of the Division Bench in Naval Kishore, J. v. D.Swarna Bhadran reported in 2008(1) CTC 97 for the proposition that as per Section 67 of the Evidence Act, unless the non-production of original is satisfactorily explained, secondary evidence cannot be looked into.
7. I have considered the submission of the learned counsel on either side and I have also gone through the materials available on record.
8. The suit in O.S.No.488 of 1996 has been instituted by the revision petitioner on the factual premise that as per the power of attorney executed by the respondent on 29.01.1993, he was permitted to develop the land belonging to the respondent, having an extent of 1.50 acres and a certified copy of the said power of attorney is found to have been produced along with the plaint. However, the suit was contested by the respondent on the ground that only an extent of 50 cents of property were given as per the said power of attorney and the revision petitioner with the connivance of the officials of the Registration Department fraudulently changed the extent as 1.50 acres instead of the original extent of 50 cents. Subsequently, during the course of trial, the petitioner attempted to mark the certified copy of the power of attorney as a document on his side. The same was objected to by the respondent mainly on the ground that loss of original has not been properly accounted in terms of Section 65 of the Indian Evidence Act.
9. The document produced by the revision petitioner as document No.1 is found to be a certified copy of the power of attorney registered as document No.13/1993 on the file of Sub-Registrar, Ponneri. Admittedly, the document is a registered document and what was produced by the revision petitioner was only a certified copy of the said document. Section 74 of the Indian Evidence Act, 1872 indicates as to what are all the documents which could be termed as public documents. As per Sub-Section 2 of Section 74, public records kept (in any State) of private documents are public documents. Section 76 mandates that every public officer having the custody of the public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorised by law to make use of seal; and such copies so certified shall be called certified copies.
10. As per Section 77, such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies. Section 79 of the Indian Evidence Act gives a statutory presumption with respect to the genuineness of certified copies.
11. Therefore, it is evident that the certified copy of the power of attorney produced by the petitioner is a public document within the meaning of Section 74(2) of the Indian Evidence Act and the same is admissible in evidence as provided under Section 76 of the Act.
12. It was the finding of the learned trial Judge in the impugned order that the secondary evidence can be admitted under Section 65 of the Indian Evidence Act, in case it is proved that the original has been lost or destroyed or for any other reason not arising from his own conduct or default. The learned trial Judge referred to Section 65 of the Indian Evidence Act and by observing that the petitioner has not laid the proper foundation to receive of the certified copy of the general power of attorney, appears to have rejected the said application. A reading of Section 65 of the Indian Evidence Act shows that the said provision permits secondary evidence in respect of the existence, condition or contents of a document and as per Section 65(f), secondary evidence is permissible, when the original is a document of which a certified copy is permitted by the Evidence Act, or by any other law in force in India to be given in evidence. In fact, Section 63 of the Evidence Act defines what is secondary evidence and certified copies given under the provisions contained in the Evidence Act and copies made from or compared with the originals are also considered as secondary evidence.
13. The alleged alteration in the original deed is a matter for evidence. It would be open to the respondent to summon the office copy of the document sought to be marked and to take steps to send the same for expert opinion. It is also possible for the respondent to take steps to prove her contention that there were alterations made in the document subsequent to the registration. Things would have been different, in case the document is not a registered one.
14. In Kalyan Singh v. Chooti reported in AIR 1990 SC 396, the Apex Court observed that a certified copy of a registered sale deed can be produced as secondary evidence in the absence of the original and held as under:
"25. The High Court said, and in our opinion very rightly, that Ex.3 could not be regarded as secondary evidence. Section 63 of the Evidence Act mentions five kinds of secondary evidence. Clauses (1), (2) and (3) refer to copies of documents; clause (4) refers to counter-parts of documents and clause (5) refers to oral accounts of the contents of documents. Correctness of certified copies referred to in clause (1) is presumed under Section 79; but that of other copies must be proved by proper evidence. A certified copy of a registered sale deed may be produced as secondary evidence in the absence of the original.........."
15. In J.Yasoda v. K. Shoba Ravi (2007(3)CTC 781) relied on by the learned counsel for the respondent, the issue was relating to accepatance of secondary evidence being photocopies of the original documents. The matter arose from a judgment of the Andhra Pradesh High Court and the High Court found that the photocopies cannot be received as secondary evidence in terms of Section 63 of the Indian Evidence Act, since the documents in question were photocopies and as there were no possibility of the document, being compared with the original. It was in the said factual context that the Apex Court observed that secondary evidence is an evidence, which may be given in the absence of that better evidence which law requires to be given first, when a proper explanation of its absence is given. The said decision has no factual application in the present case as only a certified copy is sought to be marked by the petitioner.
16. In J. Naval Kishore V. I. Swarnabhadran (2008(1) CTC (2008(1) CTC 97) a Division Bench of this Court considered the proof of execution of a Will as well as the issue relating to the marking of a xerox copy of the alleged family arrangement. It was in the said factual context that the Division Bench observed that as per Section 67 of the Indian Evidence Act, unless the non-production of the original is satisfactorily explained, secondary evidence cannot be looked into. Since the document sought to be marked in the said case was a xerox copy, the Bench observed that the possibility of manipulation in xerox copy cannot be ruled out. However, the facts of present case are entirely different and as such, the said judgment relied on by the learned counsel for the respondent has no application in the factual scenario of the present case.
17. Therefore, on a careful consideration of the entire matter, I am of the view that the learned trial Judge was not correct in rejecting the document on the ground that no proper factual foundation has been laid in the plaint for production of secondary evidence. As such, I am inclined to allow this revision by setting aside the order of the learned trial Judge. The respondent would be at liberty to adduce evidence or to prove that there were material alterations in the registered document and it is open to her to file appropriate application before the trial Court, in case the document has to be subjected to expert opinion. It is needless to mention that the evidentiary value of the document and the contention advanced on the side of the respondent pertaining to alteration of the extent of property is a matter to be looked into by the trial Court on the basis of evidence and on merits and as per law.
16. The Civil Revision Petition is allowed, subject to the above observation. However, in the facts and circumstances of the case, there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.
SML/Tr To The District Munsif, Ponneri