CRP/5288/2012 of Md. Layaq Ali Vs Md. Vilayath Ali on 31 December 2012

ORDER:

This civil revision petition is filed against order dated 03.10.2012passed in I.A.No.572 of 2012 (I.A) in O.S.No.257 of 2008 on the file ofthe Court of Senior Civil Judge, Vikarabad.

The petitioner herein is also the petitioner in the I.A. and plaintiffin the suit whereas the respondent herein is also the respondent in theI.A. and defendant in the suit.

The I.A. was filed under Order VII Rule 14 read with Section 151of the Code of Civil Procedure, 1908 (CPC) for receiving certaindocuments. The suit was filed by the plaintiff for specific performanceof agreement of sale deed 11.9.2006 against the defendant. It is theclaim of the plaintiff that he lost the original agreement of sale alongwith other documents pertaining to other properties while traveling ona scooter on 11.11.2006. Immediately he lodged a report before theconcerned Station House Officer and obtained a certificate to thateffect on 08.1.2007. Thereby he sought for marking of a photocopy of the agreement of sale in question along with a receipt as secondaryevidence in the suit. He pleads that unless the petition is allowed hewill suffer irreparable injury.

The respondent filed counter in which it is pleaded that the pleastaken by the petitioner are nothing but false. There was no referenceas to the loss of agreement of sale even in the alleged complaint givento the Police or in the certificate said to be issued by the Police or thecorresponding publication in ‘Andhra Jyothi’ a Telugu daily on30.12.2006. Without explaining about the existence of the originaldocument the alleged photocopy is inadmissible in evidence. Hence itis pleaded to dismiss the I.A.

On the other hand, as born out by the record, the respondentalso filed I.A.No.945 of 2010 for the rejection of plaint which wasdismissed by the Court below against which an appeal was filed whichwas also dismissed directing the Court below to dispose of the suit asexpeditiously as possible.

The Court below in fact dismissed the I.A. observing that the pleaof the petitioner was denied by the respondent, that the correspondingstamps were not printed on the date shown in the alleged agreementof sale, that the petitioner did not whisper in his pleading that theoriginal agreement of sale was lost, that the petitioner failed to producenecessary cogent, proper and convincing evidence except filing thecorresponding paper publication, certificate given by the Police andsome electricity bills, that admittedly the alleged copy of the agreementof sale was not the true extract of the original one nor it had beencertified by a competent person under proper seal and authenticity andthat if the petition was allowed much prejudice would be caused to therespondent whereas that also would lead to multiplicity ofproceedings.

Learned counsel for the petitioner would plead that importantlythe petitioner filed photocopy of the agreement of sale in questionclaiming it to be a true copy of the original. What is significant is thatthere is good evidence that the petitioner gave report to the Police for taking necessary action and consequently the Police gave necessarycertificate in that behalf. Mere receiving of the document does notamount to proving the corresponding transaction between the partiesabout which the petitioner has to place sufficient evidence. Accordingto him, at this stage the genuineness of the stamps cannot beconsidered. On the other hand, learned counsel for the respondenthas upheld the reasons given by the Court below in the order passed.

Arguments

It is not in dispute that the petitioner has to prima facie establish,under the circumstances stated, the existence of the originaldocument. In that context he has to place sufficient material before theCourt to the effect that in fact the original document was executed andwas lost following which he gave the report to the Police inconsequence of which the Police gave the certificate to that effect. Inorder to uphold his bona fides the steps, which might have been takenearlier in that context, are relevant. In other words what the plaintiffpleaded in the plaint in this behalf is important. He clearly asserted inthe plaint that he misplaced the original agreement of sale and alsoother relevant documents on 11.11.2006 while he was going onscooter following which he gave report to the Police who issued thecertificate to that effect on 08.1.2007, which facts the respondentdenied in his written statement. Thereby there is proper explanationabout the missing of the document at the outset.

In this context it is necessary to extract Section 65 of theEvidence Act which enjoins “Cases in which secondary evidencerelating to documents may be given.- Secondary evidence may begiven of the existence, condition, or contents of a document in thefollowing cases:- (a) When the original is shown or appears to be inthe possession or power – of the person against whom the documentis sought to be proved, or of any person out of reach of, or not subjectto, the process of the Court, or – of any person legally bound toproduce it, - and when, after the notice mentioned in Section 66, suchperson does not produce; (b) when the existence, condition or contentsof the original have been proved to be admitted in writing by theperson against whom it is proved or by his representative in interest;

(c) when the original has been destroyed or lost, or when the partyoffering evidence of its contents cannot, for any other reason notarising 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 ofsection 75; (f) when the original is a document of which a certified copyis permitted by this Act, or by any other law in force in India to be givenin evidence; (g) when the originals consists of numerous accounts orother 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 thedocument is admissible. In case (b), the written admission isadmissible. In case (e) or (f), a certified copy of the document, but noother kind of secondary evidence, is admissible. In case (g), evidencemay be given as to the general result of the documents by any personwho has examined them, and who is skilled in the examination of suchdocuments.”

Thereby even photocopy of the document is admissible inevidence provided necessary explanation is given about thewhereabouts of the original. I am convinced with regards to theexplanation given in that behalf. Therefore it was not correct on thepart of the Court below to observe that in the pleadings no explanationwas given about the loss of the document. Apart from that at this stageit is not proper to consider that the photocopy is not an authenticatedone. With regards to the question of genuineness of the stamp I feelthat it is subject to adducing necessary evidence. Hence, it is also notproper to observe that by allowing the I.A. great injustice will becaused to the respondent. Hence I feel that the order passed by theCourt below being not proper is liable to be set aside and henceaccordingly is set aside and consequently the civil revision petition isallowed to the extent of receiving the document only. The question ofgenuineness of document is to be considered by the Court below later.

Subject to the observations made, the civil revision petition is allowed. Miscellaneous petitions pending if any shall stand closed.

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(G.KRISHNA MOHAN REDDY, J)

December , 2012.YS