Gauhati High Court
Lakbir Singh vs Budha Hazarika & 2 Ors on 4 August, 2018
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
CRP No. 375/2016
BEFORE
THE HON'BLE MR. JUSTICE KALYAN RAI SURANA
04.08.2017
Heard Mr. A. Dasgupta, the learned for the petitioner and Mr. S.
Baruah, the learned for the respondents.
2. The challenge made in this application under Article 227 of the Constitution of India is against the order dated 23.06.3016 passed by the learned Civil Judge, Golaghat in Title Suit No.2/2010 by virtue of which the Petition No. 485/13 filed by the petitioner/plaintiff to permit to mark the original sale deed as exhibit, was rejected.
3. It appears from the order dated 23.06.2016 that the petitioner/plaintiff while filing his evidence on affidavit on 05.03.2012 had marked the certified copy of the sale deed as Exhibit No.2. Prior to that, the learned trial court by a separate order dated 28.09.2011 had called for the original sale deed. However, when the petitioner had submitted his evidence-on-affidavit, the original sale deed was not marked as exhibit. The petitioner/plaintiff had moved the said Petition No.485/2013 to exhibit the original sale deed by marking the same as exhibit. The said prayer was rejected.
4. The learned senior counsel for the petitioner has submitted that in order to prove the original sale deed, the petitioner had first filed an application under Order XI Rule 12 CPC on 10.11.2012 and a separate application under Order XI Rule 14 CPC was filed on 13.02.2010 for a direction to the respondents/defendant No.1 to produce the original sale deed No.114/90 dated 28.01.1999. However, the respondents/defendant No.1 had submitted before the trial court that the original sale deed has not been received and, as such, the petitioner had moved the trial court for CRP No.375/2016 Page 1 of 4 calling for the original sale deed from the office of the Sub-Registrar, Golaghat and the said prayer was allowed by the order dated 08.08.2011 and accordingly, the original sale deed was received from the office of the Sub-Registrar, Golaghat on 28.09.2011. It is submitted that as the original document was kept in the custody of the court, it was the duty of the petitioner/plaintiff to prove the original document and the petitioner had accordingly moved the said Petition No.485/2013 to prove the original document as exhibit i.e., Exhbt.2. It is submitted that the learned trial court had committed jurisdictional error in refusing the said prayer.
5. The learned counsel appearing for the respondents has opposed the prayer made by the petitioner herein and has argued in support of the impugned order. The learned counsel for the respondents has submitted that as the certified copy of the original sale deed is already on record, the petitioner herein would not be prejudiced as the court always has the power to look into the original copy if that is required for appreciation of the evidence. It is further submitted that as the certified copy of the sale deed was otherwise admissible in evidence, there was no requirement to prove the original sale deed and therefore, prays for dismissal of this revision.
6. Having heard the learned counsel for both sides, this Court is of the view that under the provisions of Section 61 of the Evidence Act, the contents of a document may be proved either by primary or secondary evidence. The primary or secondary evidence is defined in Section 62 and 63 of the Evidence Act and therefore, a certified copy of a document was within the definition of secondary evidence as per the provisions of Section 63(1) of the Evidence Act. Moreover, the conditions under which secondary evidence relating to documents can be permissible has been mentioned in Section 65 of the Evidence Act, 1872. Under the circumstances, when the original document was available in court and if still a certified copy is proved, such evidence may not be adequate to prove CRP No.375/2016 Page 2 of 4 the contents of the document. It is also seen that under the provision of proviso appended to Order XVIII Rule 4 CPC, the proof and admissibility of such documents, which were filed along with the affidavit is subject to the orders of the court. Therefore, unless there is a specific order by the learned trial court to prove the particular documents by secondary evidence, the objection as to the admissibility of such evidence can be taken at a subsequent point of time by the opposite party. Hence, the petitioner is found to have correctly approached the learned trial court by filing a petition to permit him to mark the original sale deed as Exhbt.2. By the impugned order, the learned trial court was of the view that the plaintiff's side has examined 5(five) witnesses. Hence, if any one is allowed to mark the original sale deed, that can only be done by re-examination, which is not permissible before the cross-examination is over, therefore, the petition is held to be premature.
7. In this regard, in the opinion of this Court, the marking of a document as an exhibit is a procedural part and once before the cross examination starts, the witness for the party examined as witnesses make a prayer to permit to mark the original document as exhibit, the procedural aspect can be moulded to ensure that it becomes a handmaid of justice and not to use it as a tool to deny a party to mark the original document as exhibit when the original document is already in the record of the court.
8. In view of the discussion above, this Court is of the opinion that the learned trial court had committed jurisdictional error in refusing the PW.1 to mark the original sale deed as exhibit. Therefore, this Court is inclined to allow this revision by setting aside the impugned order dated 23.06.2016 passed by the learned Civil Judge, Golaghat in Title Suit No.2/2010. Resultantly, the Petition No.485/2013 stands allowed.
9. The learned court may now permit the PW.1 either to record his additional oral statement or to file additional evidence-on-affidavit for CRP No.375/2016 Page 3 of 4 marking additional sale deed as exhibit and then the case will proceed for the cross-examination of the PWs.
10. The revision stands allowed. There shall be no order as to costs.
11. Both the parties are directed to appear before the court of learned Civil Judge, Golaghat on 24.08.2017 without any further notice of appearance and by producing a certified copy of this order, shall seek further instructions from the said learned court.
JUDGE MKS CRP No.375/2016 Page 4 of 4