Andhra HC (Pre-Telangana)
Katakam Viswanatham vs Katakam China Srirama Murthy And Ors. on 24 February, 2004
Equivalent citations: AIR2004AP522, 2004(3)ALD338, 2004(3)ALT791
Author: J. Chelameswar
Bench: J. Chelameswar
ORDER J. Chelameswar, J.
1. Aggrieved by an order in I.A. No. 220 of 2003 in O.S. No. 251 of 2000 dated 31.3.2003 on the file of the Principal Junior Civil Judge, Peddapuram the unsuccessful petitioner-plaintiff filed this present revision under Article 227 of the Constitution of India. From the order it appears that the above mentioned I.A. was filed invoking the jurisdiction of the Court under Order 7, Rule 14(3) of CPC. Under the above mentioned IA, the petitioner wanted to tender two documents in evidence at the time of the trial of the above mentioned suit. One of the documents is an alleged notice dated 17.10.2003 issued by an Advocate on behalf of the defendants in the suit and the second document is the typed copy of an alleged partition deed said to have been supplied to the petitioner by the defendants in O.S. No. 130 of 1966 on the file of the Sub-Court, Kakinada.
2. By the impugned order, the above mentioned IA was allowed and in the language of the Trial Court as follows :
"Petition is allowed on condition that the petitioner shall pay for costs of Rs. 100/- and copy of legal notice to be received in the evidence and typed copy of partition deed cannot be received as secondary evidence as it is not shown that the original partition deed is in possession of the opposite party. Hence, Secondary evidence is inadmissible under Section 65(a) Part I of Indian Evidence Act. Costs paid the petition is allowed accordingly."
Aggrieved by that portion of the order by which the Trial Court declined to receive the second document referred to above in evidence, the present civil revision petition is filed under Article 227 of the Constitution of India.
3. Admittedly the said document is not a document in original, but a typed copy, the whereabouts of the original of are not disclosed by the petitioner to the Court. From the order, it appears the trial of the suit has already commenced. The petitioner was examined in chief. Thereafter, he took several adjournments and came up with the present I.A. Order 7, Rule 14 as amended by Act 46 of 1999 which came into force from 1.7.2002 reads as follows :
"14. Production of document on which plaintiff sues or relies:--(1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.
(2) Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is.
(3) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.
(4) Nothing in this rule shall apply to document produced for the cross-examination of the plaintiff's witnesses, or, handed over to a witness merely to refresh his memory."
An analysis of the scheme of Order 7 discloses the following:
4. Order 7 deals with the plaint, the contents of the plaint, return or rejection of the plaint etc. Rule 14 mandates that whenever a plaintiff sues upon a document or relies upon a document as the basis of his claim in the suit, the document is required to be deliver to the Court along with the plaint if the said document is in possession of the plaintiff. Rule 2 provides for the contingency where such a document is not in the possession or power of the plaintiff, the said sub-rule stipulates that the plaintiff has disclosed as to in whose possession such a document is. Sub-rule (3) creates an embargo on the reception of any such document in evidence which is not produced along with the plaint in accordance with the provision contained under Rule 14(1) unless the leave of the Court is granted.
5. The Code of Civil Procedure also deals with the filing of documents which are evidence in support of the claim in a suit. The relevant provision is Order 13, Rule 1 in this context. Order 13, Rule 1 reads as follows:
"Order XIII - Production, impounding and return of documents - Rule 1 : Original documents to be produced at or before the settlement of issues.--The parties or their pleader shall produce on or before the settlement of issues, all the documentary evidence in original where the copies thereof have been filed along with plaint or written statement."
On an examination of the rule, it can be seen that Order 13, Rule 1 deals with those documents which are only evidence in support of the claim, but not the documents which are the basis of the claim. The said rule also mandates that all such documentary evidence relied upon by either party in support of their respective plea to be filed along with the pleading.
6. Clearly there is a distinction between the nature of the documents covered under Order 7, Rule 14 and Order 13, Rule 1. A document filed under Order XIII, Rule 1 as a piece of evidence in support of the claim of one of the parties to the suit filed along with the pleading may eventually be proved or may not be proved by the concerned party depending upon the issues involved in the suit Order 13, Rule 1 deals with only reception of the documents by the Court as part of the record of the suit. It does not deal with reception of the document as a piece of evidence. Rule 13 deals with a stage prior to the reception of the evidence in the suit. Whereas Order 7, Rule 14 deals with different situation altogether. There is a clear embargo on the reception of a document in evidence, which forms the basis of the suit and filed by the plaintiff along with the plaint, but not filed. The Court of course is vested with the discretion under Sub-rule (3) of Rule 14 to receive any such document contemplated under Rule 14(1) at a belated stage by granting leave. Though the Code is not very express as to the parameters in exercising the discretion of granting leave, it goes without saying that such discretion must be exercised in accordance with the established principles of law. It cannot be said to be an irrelevant consideration while dealing with an application under Order 14, Rule 3 for the Court to examine whether the document sought to be tendered in evidence during the course of the trial of the suit by the plaintiff is a legally admissible document or not.
7. The document in question in the present case as already indicated is a typed copy of an alleged partition deed. Such a document it is argued by the learned Counsel for the petitioner, secondary evidence falling within the purview of Section 63 of the Evidence Act.
8. Section 63 describe the secondary evidence to mean and include certified copies given in accordance with the provisions of the Evidence Act, copies made from the original by mechanical process which themselves ensure the accuracy of the copy and copies compared with such copies or copies made from or compared with the original etc. From the material available on record and the affidavit filed in support of the IA, it is not possible even to call the document in question a piece of secondary evidence because there is no allegation that the document falls under one of the categories enumerated in Section 63 of the Act. Assuming for the sake of argument that the document in question falls within the description of expression 'secondary evidence', the party who seeks to tender secondary evidence is required to satisfy the Court that the conditions prescribed by the law under Section 65 of the Evidence Act do exist which enable him to tender secondary evidence with regard to a document. Section 65 of the Evidence Act categorizes the various contingencies in which the reception of the secondary evidence with regard to a document is permissible. None of the contingencies contemplated under Section 65 of the Evidence Act are pleaded to exist in the affidavit filed in support of the IA.
9. In the circumstances, though the order of the Trial Court did not give the accurate reasons for rejection, the conclusion reached by the Trial Court in rejecting to receive the document in question in my opinion is right. Exercising the revisionary power more particularly under Article 227 of the Constitution of India which is required to be exercised sparingly. This Court does not normally interfere with an order where the conclusion is right if the conclusion could be supported by the right reasons. The mere Act that conclusion is not supported by reasons need not necessarily warrant interference of this Court in exercise of the jurisdiction under Article 227 of the Constitution of India. I do not see any merits in the revision petition and the same is dismissed at the admission stage.