Andhra Pradesh High Court - Amravati
Ananatha Venkata Subbamma Died 2 Others vs Konakala Gurunadham 12 Others on 13 September, 2022
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THE HON'BLE SRI JUSTICE BANDARU SYAMSUNDER
CIVIL REVISION PETITION Nos.785 OF 2015 AND 834 OF 2015
COMMON ORDER:
These Civil Revision Petitions are filed by the petitioners under Article 227 of Constitution of India against the Orders passed by the learned Senior Civil Judge, Bapatla, in I.A.No.855 of 2010 in O.S.No.77 of 2006 and in I.A.No.854 of 2010 in O.S.No.46 of 2004, dated 21.01.2015. The revision petitioners are the plaintiffs in O.S.No.77 of 2006 whereas defendants in O.S.No.46 of 2004. The Original Suit No.46 of 2004 filed by the respondents/plaintiffs for Specific Performance of the contract in pursuance of agreement of sale dated 30.03.1996 whereas Original Suit No.77 of 2006 filed by the revision petitioners for Permanent Injunction. The said Original Suit was filed on the file of Principal Junior Civil Judge, Bapatla in O.S.No.23 of 2002 in respect of same schedule property and the said suit is transferred to Senior Civil Judge, Bapatla and renumbered as O.S.No.77 of 2006. During the course of trial, the 7th defendant in O.S.No.77 of 2006 filed petition under Section 65 of Indian Evidence Act to permit the defendants to file Photostat copy of the retirement of partnership deed dated 24.11.1997. In O.S.No.46 of 2004, the plaintiffs have filed similar petition to receive the Photostat copy of documents in the evidence of the plaintiffs.
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2. The averments in the affidavit of K.Peraiah (7th defendant) in O.S.No.77 of 2006 and the 1st plaintiff in O.S.No.46 of 2004 are similar, which are that himself and others filed suit in O.S.No.46 of 2004 for Specific Performance of the contract in pursuance of agreement of sale, dated 30.03.1996 executed by the 1st plaintiff wherein the revision petitioners have filed written statement and suit is coming up for trial. He submits that the revision petitioners filed suit for Permanent Injunction in O.S.No.23 of 2002 on the file of Principal Junior Civil Judge, Bapatla against them and others in respect of same suit schedule property disputing contract of sale wherein they filed written statement. It is the contention of the 7th defendant in O.S.No.77 of 2006 that they got suit in O.S.No.23 of 2002 transferred from Principal Junior Civil Judge, Bapatla to Senior Civil Judge, Bapatla and renumbered as O.S.No.77 of 2006.
3. He further submits that he filed chief examination affidavit as DW.1 relying upon as many as six documents out of which the document dated 24.11.1997 is deed of retirement of partnership entered between himself and the 3rd plaintiff happened to be Xerox copy as the original was lost by him in bus travel, which document is necessary to repel the contention of other side that the suit agreement 3 of sale, dated 30.03.1996 was brought into existence on account of the above said partnership dispute within the third plaintiff in O.S.No.77 of 2006. He prays to receive Xerox copy of document, dated 24.11.1997 as secondary evidence as the original is lost in bus travel.
4. In the said both similar petitions, the revision petitioners herein have filed counters with similar averments denying averments in the affidavit of Mr.K.Peraiah. It is the contention of the revision petitioners that affidavit of Mr.K.Peraiah is silent about the original document when he lost the said document in bus travel, where he lost, and what are the steps taken by him to find out the original document. They submits that in the absence of the said averments in the petition goes to show that Xerox copy of the document sought to be filed by the petitioners is a document brought into existence to establish his false defence in the suits, due to that Xerox copy of document cannot be marked as secondary evidence. They prays to dismiss the petition.
5. The learned trial Judge after hearing both sides allowed the petitions filed by the respondent/R.1 Mr.K.Peraiah in the both suits passed following Order:-
"Admittedly as per the contention of the petitioner/defendant, he lost the original document and filed the Xerox copy of document 4 dated 24.11.1997 to prove his case. There is no need for the petitioner to suppress the original and filed the Xerox copy and it seems the document of retirement of partnership deed dated 24.11.1997 document to determine the case of the plaintiff. Hence, in view of the above stated circumstances and to arrive just conclusion of the case and in the interest of justice, I am inclined to allow this petition.
In the result, petition is allowed, permitting the petitioner to file the Xerox copy of deed of retirement of partnership dated 24.11.1997 to mark the same as secondary evidence on behalf of the petitioners/defendants."
6. Aggrieved by the Orders passed by the trial Court, the present Civil Revision Petitions are filed by the petitioners stating that Orders of the Court below is contrary of illegal. The revision petitioners submits that R.1 without invoking provisions of Order VII Rule 14(1)(3) of C.P.C. or Order VIII Rule 1(A) of C.P.C came up with a petition under Section 65 of Indian Evidence Act, which is not permissible as no application is filed seeking leave of the Court to file documents after framing of issues in the suits. He further submits that trial Court failed to give reasons in allowing the petition and also not considered ingredients required under Section 65 of Indian Evidence Act to receive secondary evidence. He prays to allow the Civil Revision Petitions and 5 set aside the orders passed in both petitions filed by R.1(K.Peraiah) in both suits. For which R.2(K.Peraiah) filed counter affidavit supporting the orders passed by trial Judge and also relied on ratio laid down by the Hon'ble Apex Court in R.V.E.Venkatachala Gounder ...Appellant Versus A.Visweswara Swami temple and another...respondent 2003(8) Supreme Court 193, he also stated that document already marked in evidence without raising any objection now the revision petitioner cannot raise any objection.
7. I have heard both sides.
8. The learned counsel for the revision petitioners mainly contended that 1st respondent without seeking permission to receive the document by condoning the delay after framing of issues chosen to file petitions under Section 65 of Indian Evidence Act, which is not permissible under law. He submits that there is no details about lost of original document and no foundation is laid to adduce secondary evidence and document filed at belated stage cannot be received in evidence.
9. He relied on following precedent law:-
Abdul Rafi @ Abdul Rawoof...petitioner versus Venkataiah, died by L.Rs.2 and 3 and others...respondents 2019(4) ALT 409 6 wherein Hon'ble Telangana High Court held that the application for de-
exhibiting agreement of sale was maintainable which petition was erroneously dismissed by the trial Court.
10. Y.Ashok Versus Gade Ram Reddy 2015(6)ALT 196(S.B) wherein High Court of Judicature at Hyderabad held that reasons for allowing the application filed under Order XVIII Rule 17 is necessary and in the absence of reasons impugned Order cannot sustain in the eye of law.
11. Voruganti Narayana Rao Versus Bodla Rammurthy and others 2011(6) ALD 142 wherein it is held that defendant not producing documents along with written statement - Cannot be permitted to file after too belated stage, unless proper and sufficient reasons furnished for not producing documents along with written statement.
He prays to allow the revision petitions.
12. The learned counsel for the respondents contended that in the evidence of PW.2 M.Koteswaramma in O.S.No.77 of 2006 during her cross examination categorically admitted that her son also signed in the said dissolution deed along with other partners, which amounts to admission of existence of original and laid foundation to receive 7 secondary evidence. He submits that document already admitted and marked in the evidence, which cannot be demarked. He relied on following precedent of law. Javer Chand and others, Appellants Versus Pukhraj Surana, respondent AIR 1961 (SC) 1655. He further argued that as per ratio laid down in R.V.E.Venkatachala Gounder case once document is admitted without objection mode of proof cannot be questioned. He prays to dismiss the revision petitions.
13. Now the issue that emerges for consideration of this Court is:-
"Whether the Order under challenge is sustainable and tenable and whether the same warrants any interference of this court under Article 227 of Constitution of India?"
POINT:-
14. Before going to the merits of the case, it would be beneficial to quote Section 65 of Indian Evidence Act, which reads as under:-
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, 8 and when, after the notice mentioned in section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(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;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in 1[India] to be given in evidence2;
1[India] to be given in evidence2;"
(g) when the originals consists of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection. In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.
15. On perusal affidavit of 1st respondent/Mr K.Peraiah in both petitions, which shows that they intended to file and marked Photostat 9 copy of deed of retirement of partnership dated 24.11.1997 said to be entered between 1st respondent and 3rd defendant i.e., M.Rama Krishna, who is revision petitioner herein. It is also not in dispute that as per the counter affidavit filed by Mr.K.Gurunadham(R2) in the revision petitions along with copy of pleadings and evidence in O.S.No.46 of 2004 and also in O.S.No.77 of 2006 wherein there is a reference of document dated 24.11.1997. Further on perusal of cross examination of PW.2 M.Koteswaramma in O.S.No.77 of 2006 dated 25.03.2009, she admitted that her son is one of the partners of the partnership firm, dated 25.02.1997 run by R.1(K.Peraiah) and due to loss of the said business was stopped and her son was also signed in the said dissolution deed along with other partners.
16. On perusal of Section 65 of Indian Evidence Act, which makes, it clear that in which Cases secondary evidence may be given of the existence, condition, or contents of a document. 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. It is no doubt true that before producing secondary evidence foundation has to 10 be laid but when the existence or contents of the original have been proved to be admitted in writing by the person against whom, the document is proved, the secondary evidence can be received. It is no doubt true that R.1 without filing petition under Order VIII Rule 1A C.P.C or Order VII Rule 14(3) C.P.C filed document in application filed under Section 65 of Indian Evidence Act. But that itself is not a ground to reject the defence of R.1, R.2 and evidentiary value of document, if it is not required any stamp duty can be considered by the Court at any stage including at appeal stage as held by Hon'ble Apex Court in R.V.E.Venkatachala Gounder case refer supra. It is held by the Hon'ble Apex Court in R.V.E.Venkatachala Gounder case when an objection that the document, which is sought to be proved is itself inadmissible in evidence is available to be raised even at later stage or even in appeal or revision. But the objection does not dispute the admissibility by the document in evidence, but is directed towards the mode of proof allowing the same to be irregular or insufficient should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence are that the mode adopted for proving the document is irregular cannot be allowed to the raise at any stage subsequent to the marking of the document as an exhibit. 11
17. The Hon'ble Apex Court in Ranvir Singh and another Appellants Versus Union of India Respondent AIR 2005 SC 3467 while considering the land acquisition case reiterated ration laid down in R.V.E.Venkatachala Gounder case and held at para 26, which reads as under:-
Contention of Mr. Nariman that the Xerox copies of the deeds of sale produced by the parties were not admissible in evidence in terms of Section 51A of the Land Acquisition Act is stated to be rejected. The provisions of the Indian Evidence Act postulate that secondary evidence can be led by the parties in the event primary evidence is not available. In a case of this nature, however, the claimant-respondents may be aware of the transactions. Indisputably, they did not raise any objection as regard admissibility of the said deeds of sale . The xerox copy of the deeds of sale were marked exhibits without any objection having been taken by the Respondents herein. Such an objection cannot, therefore, be taken for the first time before this Court. [See R.V.E. Venkatachala Gounder vs. Arulmigu Viswesaraswami & V.P. Temple and Another, (2003) 8 SCC 752 & Dayamathi Bai (Smt.) vs. K.M. Shaffi - (2004) 7 SCC 107]. What would be their evidentiary value may ultimately fall for consideration by the Court but the said deeds of sale cannot be rejected only on the ground that only Xerox copies thereof had been brought on records. The onus to prove the market value as obtaining on the date of notification was on the claimants. It was for them to adduce evidence to prove their claims by 12 bringing sufficient and cogent materials on record so as to enable the court to determine the market value of the acquired land as on the date of issuance of notification under Section 4 of the Land Acquisition Act. If the claimants themselves filed Xerox copies of the deeds of sale or failed to examine any witness to prove the relevant factors for determining the market value of the land acquired with reference to the said sale instances, they cannot now be permitted to resile therefrom and contend that the said documents should be totally ignored.
18. As per ratio laid down in the above refer decision, the evidentiary value Photostat copy of document, dated 24.11.1997 can be decided by the trial Court at the time of disposal of the case, but the said document cannot be rejected only on the ground that which are Xerox copies. It is no doubt true that no details are mentioned in the affidavit of R.1(K.Peraiah) when the original document is lost to adduce secondary evidence but that aspect also trial Court can consider at the time of disposal of the suit as the document is already marked in the evidence adduced in both the suits. It is open for the revision petitioners herein to raise objection with regard to its admissibility even at later stage, which has to be considered by trial Court at the time of disposal of the suit. Though learned trial Judge not given detail reasons for receiving the documents, but he came to conclusion that document dated 24.11.1997 is required to be received 13 in evidence to arrive just conclusion in the case. Therefore, this Court is of opinion that orders impugned permitting R.1, R.2 marking document dated 24.11.1997 are not liable to be set aside and liberty given to revision petitioners to raise their objection with regard to admissibility at later stage, which trial Court shall consider at the time of disposal of the case. This Court did not find illegality in the orders passed by trial Courts warrants any interference by this Court under Article 227 of Constitution of India. Any observations made by this Court with regard to the merits of the case is limited to the purpose of disposal of revision petitions, it shall not come in way of the trial Court in disposing and considering the case of both sides in respect of document dated 24.11.1997.
19. Both Civil Revision Petitions are dismissed. No order as to costs.
Consequently, miscellaneous petitions pending if any, shall stand closed.
__________________________ JUSTICE BANDARU SYAMSUNDER Date :13.09.2022 chb 14 THE HON'BLE SRI JUSTICE BANDARU SYAMSUNDER C.R.P.Nos.785 of 2015 and 834 of 2015 Date : 13.09.2022 15 chb