Telangana High Court
Mr.Thakur Ajay Singh vs Medishetty Ravindra Kumar on 26 July, 2024
*THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
+ CIVIL REVISION PETITION No.1053 OF 2024
% 26--07--2024
# Mr.Thakur Ajay Singh
...Petitioner
$ Medishetty Ravindra Kumar
and others
... Respondents
! Counsel for the petitioner : Sri Dilip Singh Thakur
^Counsel for Respondents : Sri Nadipally Ananda Rao
<Gist :
>Head Note :
? Cases referred
1. 2015 (3) ALT 494 (S.B.)
2. 2019(6) ALT 58 (S.B.)
IN THE HIGH COURT FOR THE STATE OF TELANGANA
HYDERABAD
****
CIVIL REVISION PETITION No.1053 OF 2024
Between:
Mr.Thakur Ajay Singh
...Petitioner
Medishetty Ravindra Kumar
and others
... Respondents
JUDGMENT PRONOUNCED ON: 26.07.2024
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THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? :
yes
2. Whether the copies of judgment may be
Marked to Law Reporters/Journals? :
yes
3. Whether His Lordship wishes to
see the fair copy of the Judgment? :
yes
_______________________________________________
NAMAVARAPU RAJESHWAR RAO, J
3
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
CIVIL REVISION PETITION No.1053 of 2024
ORDER :
This Civil Revision Petition is filed aggrieved by the order dated 09.10.2023 in I.A.No.335 of 2019 in O.S.No.38 of 2015 passed by the Principal District Judge, Vikarabad (for short, "the trial court").
2. Heard Sri Dilip Singh Thakur, learned counsel appearing for the revision petitioner and Sri Nadipally Ananda Rao, learned counsel appearing for the respondents.
3. Learned counsel appearing for the revision petitioner submits that the revision petitioner herein is the plaintiff, who filed the suit O.S.No.38 of 2015 for specific performance of the agreement of sale dated 23.03.2015 in respect of the suit schedule property i.e., two mulgies bearing Nos.7-4-2 and 7-4-3 total admeasuring 51 sq. yards situated at Bhadreshwara Chowk X Road, Tandur, Vikarabad District.
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4. Learned counsel appearing for the revision petitioner further submits that at the time of filing of the suit, the revision petitioner has filed eight documents in all including an original notebook (diary) to prove the payments made by him to the 1st respondent on different dates, towards sale consideration. The revision petitioner mentioned the original diary in the body of the plaint and also at the end of the plaint under the heading 'the list of documents'.
5. However, when the suit was coming for the chief examination of the revision petitioner (PW.1) and documents marking, the said notebook (small diary) was found missing from the court bundle. In such circumstances, the revision petitioner has filed I.A.No.335 of 2019 under Section 65(c) of the Indian Evidence Act with a prayer to receive the photostat copy of the diary (small notebook) as secondary evidence and to mark the same through PW.1. However, the trial Court dismissed the said I.A. on untenable grounds. Aggrieved thereby, the revision petitioner has filed the present Civil Revision Petition. 5
6. Learned counsel appearing for the revision petitioner further submits that once the revision petitioner categorically pleaded about the said diary in the plaint itself and mentioned it in the list of documents, the question of not filing it does not arise. The said diary was misplaced in the section itself. The trial court had sought an explanation from the then Senior Assistant through the official Memorandum dated 11.01.2023 regarding the missing original diary. However, the explanation was not considered properly on the grounds that it was given in an omnibus manner and was not specific. When the explanation offered by the then Senior Assistant was found not satisfactory, then the trial Court ought to have ordered further enquiry into the matter to know the truth. Instead, the trial Court abruptly came to the conclusion that the revision petitioner has not filed the said document in the court.
In support of his contentions, learned counsel appearing for the revision petitioner relied upon the judgment of this Court in RAMAKRISHNA 6 CONSTRUCTIONS AND ANOTHER Vs. SINGARENI COLLIERIES COMPANY LIMITED 1, wherein this Court held as follows :-
"15. In the instant case, notwithstanding the notice issued by the revision petitioners, the respondent did not produce the letters on the ground that they were not available with it. It is to be borne in mind that where notice to produce document as contemplated under Section 66 of the Evidence Act is given, and there is non- compliance with the notice, striking of defence cannot be ordered, but secondary evidence of document can be permitted to be given. In the normal course, unless some motive is suggested to the party proposing to adduce secondary evidence to the effect that he made an application to adduce secondary evidence on false grounds, normally he can be permitted to lead secondary evidence. A bare statement made on affidavit by a party would be sufficient proof of fact that the document has been lost or not traced out. There can never be an absolute proof of fact that the document had in fact been lost. A statement of the person that the document was lost and in spite of his best efforts he could not trace out the document would be sufficient evidence of the fact that the document had been lost."
7. Learned counsel appearing for the revision petitioner further relied upon another judgment of this Court in SMT.KODALI JHANSI RANI Vs. VALASALA VENKATA RAMANA @ RAMANA (DIED) AND OTHERS 2, wherein this Court held:-
"In the normal course, unless some motive is suggested to the party proposing to adduce secondary evidence to 1 2015 (3) ALT 494 (S.B.) 2 2019 (6) ALT 58 (S.B.) 7 the effect that he made an application to adduce secondary evidence on false grounds, normally he can be permitted to lead secondary evidence. A bare statement made on affidavit by a party would be sufficient proof of fact that the document has been lost or not traced out. There can never be an absolute proof of fact that the document had in fact been lost. A statement of the person that the document was lost and in spite of his best efforts he could not trace out the document would be sufficient evidence of the fact that the document had been lost........"
8. While arguing the matter, the learned counsel appearing for the revision petitioner has brought to the notice of this Court the observations made by the trial Court at para No.13 of the impugned order, which reads as under :-
"While so, their contention that the said original diary was allegedly filed by the petitioner in the court and later it was got misplaced by him in collusion with the then civil bench clerk with a malafide intention, cannot be accepted by this court. It is a matter of common knowledge that a party who filed a document in support of his contention himself would get the said document intentionally misplaced from the record of the court, more particularly in collusion with the clerk concerned. When the said document is material to the case of the petitioner, as per his pleadings to prove the alleged payments made by him to the respondent No.1 towards part of sale consideration on different dates and in different amounts, the petitioner 8 himself cannot be expected to get it misplaced from the record of the court. This is so because, the alleged payments made in the said diary would be substantiating the case of the petitioner in pursuance of the agreement of sale dated.23-03-2015. Further, it is an undisputed fact that the petitioner has filed present suit by paying a huge amount of Rs.22,976/- towards court fees. The petitioner also would have paid the advocate fee to his counsel for filing the suit and to proceed with it. When the petitioner has taken such a risk, the alleged contention of the respondent Nos. 1 to 3 that himself got misplaced the original diary of him in collusion with the civil bench clerk from the record of the court, is not believable."
9. Learned counsel appearing for the petitioner submits that the trial Court, without considering the submissions made by the petitioner, erroneously dismissed the I.A. Therefore, appropriate orders be passed by setting aside the impugned order dated 09.10.2023 and allow the Civil Revision Petition.
10. Learned counsel appearing for the respondents filed a memo dated 26.06.2024 wherein he brought to the notice of this Court 'Form No.7 - list of documents'. The document does not show any information regarding the documents filed, and only the name of Mr. T.Ajay Singh 9 was mentioned as the plaintiff and the names of Sri M.Ravindra Kumar and others were shown as defendants. Further, there appears to be no signature on the same.
11. Learned counsel for the respondents also brought to the notice of this Court a copy of I.A.No.519 of 2017, which was filed by the plaintiff/revision petitioner before the trial court to receive twenty four documents, enclosing the list of documents in Form No.7. It is observed that in the said Form No.7, the date of document next to Ex.A-3 Original Note Book (Plaintiff Diary) is blank.
12. Learned counsel for the respondents brought to the notice of this Court the observations made by the trial court at para No.14 of the impugned order, which reads as follows:-
"The record shows that the petitioner at the stage of trial, filed his affidavit of chief examination as PW1 on 8-9-2017 along with I.A.No.519 of 2017 under Order 7, Rule 14 (3) of CPC praying the court to receive 24 documents enclosing the list of documents (Form No.7) in support of his case. No counter affidavit being reported thereto, the said petition was allowed by this court on 7-11-2017. The third document described therein and in the list of documents is original note book (plaintiff's diary). The fact remains that 10 no such original note book was filed by the petitioner along with the said petition and the list. It is beyond the comprehension this court as well as any prudent person that if at all the petitioner had already filed the said original note book along with plaint itself initially on 7-7- 2015, how he could again file the same on 8-9-2017 before this court along with the said petition. This itself goes to show that the petitioner is not correct and truthful in describing and filing the documents before this court, either along with the plaint initially or with I.A.No. 519 of 2017 later. There is no explanation from the petitioner for describing in the list of documents twice as if he is filing the original note book twice before this court. In such view of the matter, the memo dated.23-1-2018 filed by him before this court stating that the original note book allegedly filed by him before this court along with plaint was misplaced in the court itself, is incorrect and liable to be ignored. All the 24 documents described by him in the list of documents filed along with I.A.No.519 of 2017 were also reiterated as Exs.A1 to A24 at the bottom of his affidavit of chief examination, but the fact remains that his chief examination was recorded on 12-10-2018 before this court and only Exs.A1 to A22 were marked deleting the documents described him as Ex.A3 to A4."
13. Learned counsel for the respondents submits that the trial court, after hearing both sides and after considering the material available on record, rightly passed the impugned order, and there are no grounds to interfere with the same.
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14. Perused the records.
15. The trial court observed that if at all the revision petitioner had already filed the said original note book along with the plaint itself initially on 07.07.2015; it was not possible for the revision petitioner to file the same original note book again on 08.09.2017 before the trial court while filing I.A.No.519 of 2017. This lacuna itself goes to show that the revision petitioner is not truthful in describing the filing of the documents before the trial court. There is no explanation from the revision petitioner regarding the List of Documents (Form No.7), which describes it as if he filed the original notebook twice before the trial court. The revision petitioner had filed a memo dated 23.01.2018 before the trial court stating that the original note book filed by him along with the plaint was misplaced in the trial court itself. The trial court rejected the claim of the revision petitioner in view of the discrepancies in the revision petitioner's claims about the filing of the said notebook. All 24 documents described by him in the list of documents filed along with I.A.No.519 of 12 2017 were also reiterated as Exs.A1 to A24 at the bottom of his affidavit of chief examination, but when his chief- examination was recorded on 12.10.2018 before the trial court, only Exs.A1 to A22 were marked, deleting the documents described by him as Exs.A3 and A4.
16. This court is of the considered view that the trial court's observation is convincing, and it had rightly pointed out the fact that it was not possible for the revision petitioner to have filed the same original diary (notebook) twice. There is no explanation offered by the revision petitioner before the trial court to substantiate his claims that the said diary (notebook) was filed along with the plaint. Even if the revision petitioner's version were to be considered, there is no credible explanation for the said diary being marked as Ex.A3 subsequently in I.A.No.519 of 2017. Further, the Photostat copy of a specific page of the said diary filed before the trial Court appears to mention some dates and amounts, which is not readable, and further, it reflects only one side of the said page. The document sought to be presented before the trial court by 13 the revision petitioner is vague, and the same has not been presented in totality. Irrespective of whether the contents of the said document are relevant or not, the revision petitioner ought to have filed the said document with both sides being clearly reflected.
17. Learned counsel appearing for the revision petitioner had contended that the Trial Court erred by not taking into consideration the Photostat of the diary (notebook) as secondary evidence, for which he relied upon Section 65(c) of the Indian Evidence Act, 1872. Section 65(c) reads as follows:
"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 :-
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time."
(emphasis supplied) As such, a plain reading of the above section shows that clause (c) provides for the production of secondary 14 evidence, when the original document has been lost or destroyed for any other reason other than the party's own neglect. Hence, the photostat copy of the original document could be presented as secondary evidence if the party is able to demonstrate that the primary document is not custody of the party for reasons beyond his own fault or neglect. In the present case, the revision petitioner's negligence is plainly visible, since he has been taking inconsistent pleas about the filing of the original document.
18. Further, the revision petitioner did not insist for proper examination of the Senior Assistant of the trial court regarding the alleged misplacement of the notebook (diary). The filing of the said original diary itself is doubtful and there is no clarity in the pleadings made by the revision petitioner before the trial court. In his affidavit in I.A.No.335 of 2019 in O.S.No.38 of 2015, the revision petitioner has failed to mention as to when the Xerox of the diary was taken, since the original diary is claimed to be misplaced in the court bundle. It is needless to state that 15 for adducing secondary evidence under Section 65 of the Act, a party is required to plead and prove the existence of the original document and the circumstances as mentioned in Section 65 of the Act to adduce secondary evidence. In the case on hand, the revision petitioner failed to establish that the said original diary existed, since he was unsuccessful in proving that he had filed the original diary at the time of the filing of the plaint. When the filing of the original diary itself is doubtful, the revision petitioner cannot be permitted to file a Photostat copy of the said diary by invoking Section 65 of the Evidence Act as an afterthought.
19. The judgments relied upon by the learned counsel for the revision petitioner are not helpful to his case. In RAMAKRISHNA CONSTRUCTIONS (1st supra), this Court had held that there could never be absolute proof of the fact that a document had been lost. In such circumstances, a statement of the person that the document was lost by way of filing an affidavit is sufficient to adduce secondary evidence and to consider the same. 16 Further, in KODALI JHANSI RANI (2nd supra), it was held by this Court that unless some motive is suggested to the party proposing to adduce the secondary evidence, a bare statement made on an affidavit by a party would be sufficient proof of the fact that the document had in fact been lost. However, in the present case, the observation of the trial court raises suspicions about the filing of the primary document itself. When the existence of the main document itself is doubtful, the revision petitioner cannot take the shelter of Section 65(c) to introduce the Photostat copy of the same as secondary evidence. The revision petitioner has taken inconsistent stands about the filing of the notebook (diary), and no convincing explanation has been offered about the same being marked as Ex.A3 in I.A.No.519 of 2017, in contrast to the revision petitioner's plea that the original diary had been filed along with the plaint itself. Therefore, the judgments stated supra are not helpful to the revision petitioner.
20. In view of the above facts and circumstances, this Court is of the considered view that the trial court has 17 rightly dismissed I.A.No.335 of 2019 in O.S.No.38 of 2015 and there are no grounds to interfere with the impugned order passed by the trial court. Moreover, the revision petitioner failed to establish that the impugned order passed by the trial court suffers from any irregularity or infirmity. In such circumstances, this Court is not inclined to interfere with the trial court's findings by exercising its power under Article 227 of the Constitution of India. Therefore, the Civil Revision Petition is devoid of merits and the same is liable to be dismissed.
21. Accordingly, the Civil Revision Petition is dismissed. No order as to costs.
Pending miscellaneous applications, if any, shall stand closed.
_____________________________________ NAMAVARAPU RAJESHWAR RAO, J Date: 26.07.2024 Note:-
L.R.copy to be marked (B/o) Prv