Madras High Court
Arulsingamani And Another vs S. Vaiguntha Rajan And Another on 11 November, 1999
Equivalent citations: 2000(1)CTC12
ORDER
1. Defendants 1 and 2 in O.S. No.8966 of 1996 on the file of II Assistant City Civil Court, Chennai are the revision petitioners herein.
2. Suit filed by plaintiffs was one for recovery of damages of Rs.1,00,500 with interest on the allegation that petitioners herein have caused publication defaming them by sending a letter dated 11.5.1992 addressed to Secretary to Government, Industries Department, Madras. Copy of the said letter was sent to Deputy Director of Mines, Tirunelveli who made enquiries with plaintiffs. In para 15 of the plaint plaintiffs have said that 'defendants have published this petition by sending the same to the Secretary, Industries Department, Madras. The same was enquired by the Deputy Director of Mines. Tirunelveli regarding the allegations in the said petition. The plaintiff was shown the copy of the said petition sent by the defendants and the plaintiff had taken a copy of it. The plaintiff had to answer the allegation."
3. Plaintiff has taken a copy of the letter from the copy which was shown to him by the Deputy Director of Mines, Tirunelveli and the same was marked through plaintiff when he was examined. At the time when the document was marked, no objection was raised. Thereafter, evidence of plaintiff was closed and defendants' evidence was also mostly completed. At that time, defendants filed I.A.SR.No. 17845 of 1999 to reject the document Ex.A.1 as inadmissible in evidence under Order 13 Rule 3 of Code of Civil Procedure. By the impugned order, lower court without numbering the same rejected it.
4. When revision was filed, plaintiff also entered appearance by filing caveat and respondent was also directed to file counter. Pursuant to the same, respondent filed detailed counter affidavit supporting the order of lower court.
5. Even though the application is unnumbered before lower court both counsel before this court argued the matter on merits and therefore I am passing this order on the admissibility of the document itself in this revision petition.
6. Only question that requires consideration in this revision is whether petitioners herein are precluded from taking a contention that Ex.A1 was improperly marked and contend that the document is liable to be rejected.
7. The main submission made by learned counsel for petitioners was that Ex.A.1 is admittedly a copy taken from the copy of the document and the same cannot be marked under Evidence Act. It is submitted under Evidence Act, only piece of evidence that are admissible are primary evidence and secondary evidence. Primary evidence is production of original document itself and secondary evidence includes certain types of documents and Ex.A.1 will not come within those provisions of Evidence Act. It is argued that if Ex.A.1 do not come within either primary evidence or secondary evidence, the same cannot be admitted and that does not depend on taking on objection at the time when it is marked. It is the duty of the Court itself to sue whether the document is admissible under law. It is further argued that the objection is not regarding procedure regarding proof but regarding admissibility of the document itself.
8. As against the said contention, learned counsel for respondent submitted that when no objection was raised at the time of marking the document and entire evidence also coming to close petitioners will not be entitled to challenge the same at the fag end of the trial. Learned counsel also brought to my notice sequence of events including the contentions taken in the written statement.
9. I heard the learned counsel on both sides.
10. Section 62 and 63 of Evidence Act deal with primary evidence and secondary evidence. It is admitted that it is not a primary evidence, naturally plaintiffs will have to come only under Section 63 of the Evidence Act. On going by the averments in the plaint and by the deposition of PW1. I do not find that the ingredients under Section 63 is also satisfied in this case. This is what he has said in chief examination.
He has not said anything about other statutory requirements contemplated under Section 63. Under Section A href="javascript:fnOpenGlobalPopUp('/ba/disp.asp','15651','1');">63 of the Evidence Act, copies made from compared with original are admissible as secondary evidence. But no case is made out as per Sub-section either in the plaint or when PW1 was examined.
11. In Kalyan Singh v. Chhoti, , their Lordships considered a similar question in regard to production of copy of the sale deed which is neither original nor registration copy. It was just an ordinary copy. The question was whether that document is admissible in evidence. In para 25 the Judgment, their Lordships held thus, "25. The High Court said, and in our option very rightly, that Ex.3 could not be regarded as secondary evidence. Section A href="javascript:fnOpenGlobalPopUp('/ba/disp.asp','15651','1');">63 of the Evidence Act mentions five kinds of secretary evidence. Clauses (1), (2) and (3) refer to copies to documents; clause (4) refers to counter-parts of documents and clause (5) refers to oral account 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. But in the present case Ex.3 is not a certified copy. It is just an ordinary copy. There is also no evidence regarding contents of the original sale deed. Ex.3 cannot, therefore, be considered as secondary evidence. The appellate court has a right and duty to exclude such evidence."
It is also settled law that a copy when compared with original would be receivable in secondary evidence.
12. Sarkar on Evidence, Fourteenth Edition, 1993, commenting on Section A href="javascript:fnOpenGlobalPopUp('/ba/disp.asp','15651','1');">63 has said thus, the latter part of the clause shows that a copy of a copy when compared with original would be receivable as secondary evidence. (See Illustration (c)). Learned author has further said thus, "...a copy transcribed from a copy but afterwards compared with the original, is secondary evidence because on account of its comparison with the original it becomes itself an immediate copy; but if it is not compared with the original, it is not secondary evidence although the document from which it was copied was compared with the original. Such a copy of a copy (i.e. 2nd copy not compared with the original is not evidence because mistakes may have crept in the second transcription; but there is the same possibility in respect of the first copy. Difficulty will arise when the copy of a copy cannot be compared on account of the non-existence of the original. In Cameron v. Peck, 37 conn 763, Foster J, said: "The rule that a copy of a copy is not evidence properly applies (1) to cases where the original is still is existence and capable of being compared with it, or (2) where it is the copy or a copy of a record, the record being still in existence and being by law as high evidence as the original". (Wig s 1274). A copy of a copy, the original not having been satisfactorily accounted. For is inadmissible.
Learned author has further said at page 956 that a copy of a certified copy of a document which has not been compared with the original, cannot be admitted, such a copy being neither primary nor secondary evidence of the contents of the original. A copy of a copy is inadmissible. A copy of the office copy of a sale deed issued by the Official Receiver is inadmissible.
13. I have already extracted that portion of the plaint which shows that Ex.A1 is only copy of a copy and the same does not come under any provisions of Section A href="javascript:fnOpenGlobalPopUp('/ba/disp.asp','15651','1');">63 of the Evidence Act. If that be so, the same is inadmissible in evidence.
14. Further question that arises for consideration is whether merely because petitioner's counsel did not object to the marking when Ex.A.1 was marked through P.W.1, is he barred subsequently to contend that Ex.A.1 shall not be looked into for any purpose and the same is to be rejected as evidence?
15. In Gopal Das v. Sri Thakurji, AIR 1943 PC 83, this question came for consideration and their Lordships have held thus, "On giving to this very important question the full consideration which it deserves their Lordships do not think that the High Court's rejection of the document can be sustained. The endorsement "admitted against the plaintiffs" is in the form generally employed by the trial Judge under Order 13, Rule 4 for documents tendered by the defendants just as the plainfiff's documents are marked "admitted against the defendant". The endorsements means that the document is admitted in evidence as proved. Where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular of insufficient it is essential that the objection should be taken at the trial before the document is make as an exhibit and admitted to the record. (Italics supplied)
16. In MT. Sumitra Kuer v. Ram Khair Chwbey, AIR 1921 Pat. 61, at page 63 of the Judgment, their Lordships have held thus, "The first thing to be observed is that this document was clearly not admissible in evidence at all, but two points have been urged before us. The first is that it was apparently tendered in evidence without any objection at the time by the other side, and this appears from a list of documents put in at the trial including the document in question against which there is a note to the office that it was put in without objection. But this is not merely a case of waiving the necessary formality of proof of a particular document, a formality which the parties say possibly agree to waive, but it is question of whether a particular document is in itself admissible as proof at all, and in such cases the law appears to me to be that the mere omission to object to a document which is not in itself admissible as evidence does not constitute that document evidence so as to be available to either party at the trial, and I think it is only necessary to refer to section 5 of the Evidence Act which lays down a very strict rule as to what evidence may be given and what evidence may not in any suit, That section provides that "Evidence may be given in any suit or proceeding of the existence or non-existence or every fact in issue and of such other facts as are herein-in-after declared to be relevant and of no others.
The explanation to the section says:
"This section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force relating to civil procedure."
It is clearly the duty of the Judge, apart altogether from any objection by the parties or their pleaders, to exclude all irrelevant evidence, and in this case had the learned Munsif performed that duty he would have entirely excluded this document on the ground that it was not admissible. ..." (Italics supplied)
17. In Kishan Lal v. Sohanlal, AIR 1955 Raj. 45, a Division Bench consisting of Chief Justice Wanchoo (as he then was had to consider this question and admissibility of document in question was taken in appeal. In that judgment, the Division Bench held thus, "If the evidence is per se inadmissible, and cannot possibly be admitted under any provision of the Indian Evidence Act, the failure to object to its admission in the trial court would not make it admissible, and would not bar the party objecting to admission from raising the point in the appellate court. It is only with respect to evidence, which is admissible under some provision of the Indian Evidence Act, and there is some defect in connection with its admission, but no objection was taken to the admission on account of the defect, that the party objection may not be allowed to object to the improper admission at the appellate state." (Italics supplied)
18. In Naladhar Mahapatra v. Seva Dibya, , in para 24, it is held thus, "...once a document is admitted into evidence, without objection the documents cannot be challenged subsequent stage, but in a case a document which cannot be admitted into evidence due to some prohibition in law, even if it is admitted evidence without objection, the Court can come to a finding that the document though admitted is inadmissible."
19. From the above decisions it is clear that a document though marked without objection is against any provisions of law, party is not later precluded from contending that the evidence will have to be eschewed from the case.
20. Learned counsel for respondents relied on the following decisions:
(1) Balakrishna v. Ganesa, (FB) AIR 1954 Travancore, Cochin 209; (2) Ramakrushna v. Gangadhar, AIR 1958 Ori 25; (3) M.S.U. Mills v. Union of India, ; (4) Mira Bai v. Jai Singh, AIR 1971 Raj. 303; (5) Dhurma v. Paramanands, ; (6) Brij Monan v. Bank of Baroda, ; (7) Ganesan & 4 others v. M. Sundararaja Thevar, 1999 (3) L.W. 433 The decision in Balakrishna v. Ganesa, AIR 1954 Travancore-Cochin 209, was followed the decision reported in Gopal Das v. Sri Thakurji, AIR 1943 PC 83, It all the other cases except Ganesan & 4 others v. M. Sundararaja Thevar, 1999 (3) L.W. 433 the question considered was regarding mode of proof and the decision was that the objection as to admissibility will have to be taken at the time when the document is sought to be marked. In Ganesan & 4 others v. M. Sundararaja Thevar, 1999 (3) L.W. 433, the question was whether a public document not coming from proper custody can be marked? In none of the decisions, the admissibility of the document which is prohibited by law was a matter in issue. Hence those decisions may not be applicable to the facts of this case.
21. In view of my finding that the document itself is in admissible in evidence, merely because it is not objected while marking will not preclude petitioner subsequently to contend that Ex.A.1 is liable to be eschewed from evidence, and the same shall not be looked into for any purpose.
22. Taking into consideration interest of justice, in this case I feel that an opportunity has to be given to respondents either to produce original or the secondary evidence and proceed with trial.
23. In the result, the impugned order is set aside and the revision petition is allowed with the above observation. No costs. Consequently, C.M.P.No. 16661 of 1999 is also closed.