Madras High Court
The Home Missionary Society Of India vs Vepery Auxiliary Of on 7 November, 2014
Author: K.Ravichandrabaabu
Bench: K.Ravichandrabaabu
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.11.2014
(Orders reserved on 31.10.2014)
CORAM:
THE HONOURABLE MR.JUSTICE K.RAVICHANDRABAABU
C.R.P.(PD).No.3475 of 2014
& M.P.No.1 of 2014
1. The Home Missionary Society of India,
rep. by its Secretary,
No.15, Swamiar Garden,
Ponniamman Medu,
Chennai-600 110.
2. Dr.Geoffrey K.Francis
3. Mr.Melford I.Terry .. Petitioners
Vs.
Vepery Auxiliary of
The Home Missionary Society of India,
rep. by its Secretary Mrs.Rose Fernandes,
No.12A, Ritherdon Road,
Vepery, Chennai-600 007. .. Respondent
Civil Revision Petition filed under Article 227 of the Constitution of India, against the docket order, dated 1.7.2014 in O.S.No.5878 of 2013 on the file of VII Assistant City Civil Court, Chennai.
For petitioners : Mr.Adrian D.Rozario
For respondent : M/s.N.D.Bahety
ORDER
This Civil Revision Petition is filed challenging the docket order dated 1.7.2014 in O.S.No.5878 of 2013 on the file of VII Assistant City Civil Court, Chennai, in marking Exs.A-1 to A-16 and in particular, Exs.A-3 to A-16 marked with objection on the side of the defendants.
2. The petitioners are the defendants in O.S.No.5878 of 2013 pending on the file of VII Assistant City Civil Court, Chennai, filed by the respondent herein for declaration and permanent injunction. The petitioners are aggrieved by marking of Exs.A-3 to A-16 by the respondent/plaintiff on the sole ground that they are only photocopies and therefore, they cannot be marked as documents. It is their contention that even though they have filed a memo, objecting to the marking of those documents in the form of photocopies, the trial Court erred in allowing the plaintiff to mark those documents without considering and giving a finding on the objections raised by the petitioners/defendants. Learned counsel for the petitioners further submitted that those documents cannot be marked even by recording that they are marked with objections of the petitioners/defendants. In support of his submissions, learned counsel appearing for the petitioners relied on the decisions of the Honourable Supreme Court reported in 2007 (5) SCC 730 (J.Yashoda Vs. K.Shobha Rani), 1966 (3) SCR 283 = AIR 1966 SC 1457 (Roman Catholic Mission Vs. State of Madras) and 2010 (8) SCC 423 (Shalimar Chemical Works Ltd. Vs. Surendrda Oil and Dal Mills).
3. Per contra, learned counsel appearing for the respondent/plaintiff submitted that the trial Court has rightly allowed the plaintiff to mark those documents, even though they are photocopies, in view of the fact that the originals are in the custody of the petitioners/defendants. It is the contention of the plaintiff-Society that those documents are essentially to be marked to prove their case against the defendants. It is further submitted that such marking of documents, even though they are not originals, is permissible under Section 65(a) of the Indian Evidence Act. It is further contended that proviso to Section 66 of the Indian Evidence Act also contemplates that issuing of notice to the other side, can be dispensed with. In support of the above submissions, learned counsel appearing for the respondent/plaintiff relied on the decision of this Court (Madurai Bench) reported in 2007 (5) CTC 206 (Amutha Beellarmine Corera Vs. Elsie Villavarayer). He also submitted that the case laws relied on by the learned counsel appearing for the petitioners are factually distinguishable.
4. Heard the learned counsel appearing on either side and perused the materials placed before this Court.
5. The point for consideration in this Civil Revision Petition is as to whether certain documents which are in the form of photocopies, can be marked by the plaintiff even by recording that they are marked with objections on the defendants' side, without seeking permission of the Court by filing appropriate application.
6. The contention of the petitioners who are the defendants in the said suit is that those documents were marked inspite of their objections made through memo, dated 16.6.2014. On the other hand, learned counsel appearing for the respondent/plaintiff submitted that the originals of those documents are in the custody of the defendants and therefore, under Section 65(a) of the Indian Evidence Act, 1872, the plaintiff is entitled to mark those documents, even though such marking is objected by the defendants.
7. No doubt, both sides have relied on certain case laws referred to above in their favour and made submissions elaborately, both on factual and legal aspects. This Court can go into the issue involved in this case and decide the same, if such issue involves only a question of law. On the other hand, if such issue involves both question of law and facts, unless there is a finding rendered by the Court below in respect of such question of facts, this Court, by exercising its jurisdiction under Article 227 of the Constitution of India, cannot go into the facts as a Court of first instance and give a decision thereon. In this case, the Court below has not gone into any of the rival submissions made by the parties on the factual aspects of the matter, more particularly with regard to the claim that the photocopies of the documents which are sought to be marked, are entitled to be marked under Section 65(a) of the Indian Evidence Act, as contended before this Court. In fact, the impugned docket order dated 1.7.2014 passed by the Court below reads only as follows:
"01.07.2014 PW1 present. Marked Ex.A1 to Ex.A16. (Ex.A3 to A16 Marked with Objection of Defendants Side). Call on 11.07.14 for Further Plaintiff side MOD."
8. It is needless to say that the above order of the Court below marking Exs.A-3 to A-16, of course by recording that they are marked with objections on the defendants' side, cannot be sustained for two reasons. Firstly, there is no application filed by the plaintiff under Section 65(a) of the Indian Evidence Act, seeking permission to mark those documents, which are admittedly the photocopies, the originals of the same said to be in the custody of other side. Secondly, the abovesaid order also did not discuss the objections raised by the defendants through their memo, dated 16.6.2014. It is well settled that photocopies cannot be marked as a primary evidence. However, if they are sought to be marked as secondary evidence under the circumstances as contemplated under Section 65(a) of the Indian Evidence Act, 1872, then the party who seeks to mark those secondary evidence must file an application under Section 65(a) of the said Act and seek permission of the Court. In this case, no such application was filed. That being the factual position, I am of the view that the impugned order of the Court below, dated 1.7.2014 marking Exs.A-1 to A-16 (Exs.A-3 to A-16 marked with objection on the side of the defendants), cannot be sustained and consequently, the same is liable to be set aside. Accordingly, the same is set aside.
9. At the same time, it cannot be said that the respondent/plaintiff is remediless. Therefore, the respondent/plaintiff is at liberty to file an application under Section 65(a) of the Indian Evidence Act, 1872 before the trial Court seeking permission to mark the photocopies of those documents and as and when any such application is filed, it is open for the petitioners/defendants to file their counter affidavit to the said application, and the Court below shall consider the said application and pass orders on the same, on merits and in accordance with law.
10. In view of the above stated discussion of facts, I am not referring the decisions relied on by either side, as the parties are at liberty to place those decisions before the trial Court at appropriate time, in view of the liberty granted to the respondent/plaintiff as stated supra.
11. The Civil Revision Petition is allowed with the abovesaid observations and liberty to the parties. No costs. The Miscellaneous Petition is closed.
07.11.2014 Index: Yes / no Internet: Yes / no cs Copy to VII Asst. Judge, City Civil Court, Chennai.
K.RAVICHANDRABAABU,J cs Order in C.R.P.(PD).No.3475 of 2014 07.11.2014