Madras High Court
Amutha Beellarmine Corera vs Elsie Villavarayer on 3 April, 2007
Equivalent citations: 2007(5)CTC206, (2007)6MLJ893
Author: S. Nagamuthu
Bench: S. Nagamuthu
ORDER S. Nagamuthu, J.
1. These Civil Revision Petitions have been filed by the petitioner herein, challenging the orders dated 25.08.2005 and 15.12.2005 made in I.A. Nos. 362 & 555 of 2005 respectively in O.S. No. 47 of 2005, on the file of the learned Additional District Munsif, Tuticorin.
3. Brief facts of the case are as follows:
The respondent in both the civil revision petitions has filed the suit in O.S. No. 47 of 2005, against the petitioner herein on the file of the learned Additional District Munsif, Tuticorin, for declaration of easementary right of getting free flow of air and light through the second schedule property and for consequential injunction restraining the petitioner herein who is the defendant from interfering with the plaintiff's above right and for other related reliefs. The petitioner/defendant has filed a written statement before the lower Court and contested the suit. The petitioner herein examined herself as D.W.1 before the trial Court. At that point of time, an attempt was made to mark a xerox copy of the approved plan relating to the construction of the building on the suit property through her. Since it was opposed, the petitioner filed I.A. No. 362 of 2005, to mark the xerox copy of the approved plan. The respondent/plaintiff filed a detailed counter in the said I.A., opposing the said move on the ground that the petitioner has not satisfied the requirements of Section 65 of the Evidence Act. After hearing both parties, the learned Judge held that the petitioner has failed to prove that the original document has been lost. On such conclusion, the learned Additional District Munsif has dismissed the I.A. No. 362 of 2005, by an order dated 25.08.2005, refusing to allow the xerox copy of the document being marked in evidence. Challenging the said order dated 25.08.2005, made in I.A. No. 362 of 2005, CRP No. 172 of 2006 has been filed before this Court by the petitioner/defendant.
4. Subsequently, the Building Inspector, Tuticorin Municipality, was examined on the side of the defendant as D.W.2. On the directions of the learned Additional District Munsif, D.W.2 produced the entire file relating to the plan approval for the construction of the building in question. When D.W.2 was examined, it was found that in the said original file, the plan relating to the suit property was found missing though all the other relevant documents are available. Therefore, an attempt was again made by the petitioner/defendant to mark the xerox copy of the approved plan through D.W.2. It was also resisted by the plaintiff. Therefore, I.A. No. 555 of 2005 was filed by the petitioner/ defendant to permit her to mark the said xerox copy of the approved plan through D.W.2 as secondary evidence. Thereafter, the respondent/plaintiff filed counter stating that the petitioner has not proved to the satisfaction of the Court that the original has been lost. Accepting the said contention of the respondent/plaintiff, the learned Additional District Munsif by an order dated 15.12.2005, dismissed the I.A. No. 555 of 2005. Challenging the said order of the learned Additional District Munsif, the petitioner/defendant has filed CRP No. 173 of 2006 before this Court.
5. Heard the learned Counsel for the petitioner as well as the learned Counsel for the respondent.
6. It is contended by the learned Counsel for the petitioner that the approved plan relating to the building in question is a very vital document to prove the facts and issues involved in this case. The learned Counsel for the petitioner would further contend that for the purpose of marking a xerox copy, the petitioner has satisfied the conditions laid down in Section 63 as well as in Section 65 of the Evidence Act. He would further contend that for the limited purpose of marking the xerox copy, it is suffice for the petitioner to prove prima facie that original document was lost. Further, it is contended that regarding the correctness and validity of the document, it is for the respondent to agitate the matter at the appropriate stage during the trial of the suit. The learned Counsel for the petitioner would conclude her argument stating that the trial Court ought to have allowed the petitioner/defendant to mark the xerox copy of the document as secondary evidence either through D.W.1 or through D.W.2.
7. The learned Counsel appearing for the respondent would resist all the contentions made by the learned Counsel for the petitioner. He would mainly contend that Section 63 of the Evidence Act, has not been complied with and again the missing of the original document has not been proved by the petitioner in order to satisfy Section 65 of the Evidence Act. He would conclude his arguments stating that the lower Court was right in dismissing both the applications namely I.A. Nos. 362 and 555 of 2005.
8. I have given serious consideration to the arguments advanced by the learned Counsel appearing for both the parties and also perused the materials available on record. At the outset, I would like to state that for marking a xerox copy of the document, there cannot be any second opinion that the party who seeks for marking the document should satisfy the requirements contained in Section 63 as well as in 65 of the Evidence Act.
Section 63(2) of the Evidence Act is extracted below:
(2) Copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies;
9. A close reading of Section 63(2) would show that copies made from original by mechanical processes which in themselves ensures accuracy of the copy fall within the category of secondary evidence. In this case, the respondent has not anywhere disputed the accuracy of the copy made from the original. Therefore, when the accuracy of the copy is assured, certainly the xerox copy sought to be proved in evidence will fall under the category of secondary evidence as defined in Section 63 of the Evidence Act.
10. Now coming to Section 65 of the Evidence Act, as rightly contended by the learned Counsel for the respondent, unless the loss of the original document is proved, the secondary evidence is not admissible in evidence. To substantiate his contention, the learned Counsel for the respondent would state that there is no proof that the original has been lost.
11. Per contra, the learned Counsel for the petitioner would contend that there is enough evidence by way of oral evidence of D.Ws.1 and 2, to the effect that the original document was lost; which was submitted to a co-operative Housing Society for raising loan for constructing the building.
12. Considering the rival contentions I am of the considered opinion that such oral evidence which has not been challenged in the cross examination would be enough to satisfy Section 65 of the Evidence Act. Since, the attempt of the petitioner/defendant to mark the xerox copy through D.W.1 by filing I.A. No. 362 of 2005 has not succeed, the defendant examined D.W.2 to prove the original document at last though him by summoning the entire file relating to the plan approval. Unfortunately the said file, though produced does not contain the original plan approved and the same was found missing. Therefore, there was no option for the petitioner/defendant except to resort to mark the xerox copy which is available in her hands to prove the same through D.W.2 at least. Hence, I.A. No. 555 of 2005 was filed. In the counter filed therein, the respondent again opposed on the ground that the loss of original has not been proved. More than sending for the original file which would normally contain the approved plan are cannot expect the petitioner to do anythingelse. Rightly the said attempt has been made and that also proved futile, because the original which should be there in the file relating to the plan approval is missing curiously. Thus, through D.W.2 also it has been proved by the petitioner that the original has been lost. Thus satisfactorily she has proved the loss of the original and has satisfied the requirement of Section 65 of the Evidence Act. The trial Court, therefore, ought to have at least allowed I.A.555 of 2005, permitting the defendant to mark the xerox copy through D.W.2 which also the learned Additional District Munsif has not done.
13. In the above said circumstances, I am of the view that the learned Additional District Munsif was not right in dismissing both the applications in I.A. Nos. 362 and 555 of 2005. Therefore the orders made in I.A. Nos. 362 and 555 of 2005 dated 25.08.2005 and 15.12.2005 respectively in O.S. No. 47 of 2004, are liable to be set aside and accordingly set aside and both the applications in I.A. Nos. 362 and 555 of 2005 are allowed. The petitioner/defendant is at liberty to prove xerox copy of the plan either through D.W.1 or through D.W.2 or through both.
14. At this juncture, the learned Counsel for the respondent would make a submission that the plaintiff/respondent in both CRPs should be given liberty to raise all objections with reference to the validity of the defence available and otherwise of the xerox copy which is sought to be marked.
15. Considering the nature of the request made by the learned Counsel for the respondent, it is made clear that all the objections available under law for him can be raised before the trial Court with reference to the said document. In the result, the civil revision petitions are allowed and the learned Additional District Munsif is directed to dispose of the suit as expeditiously as possible. No costs. Consequently, connected M.Ps are closed.