IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 22ND JUNE 2010 / 1ST ASHADHA 1932 AS.No. 144 of 2002(E) ------------------------------- OS.302/1994 of I ADDL.SUB COURT, THIRUVANANTHAPURAM. .................... APPELLANT/1ST DEFENDANT; --------------------------------------------- S. GEORGE, S/O. SAMUEL NADAR, CHRISTIAN, AGED ABOUT 45, PATTANIKUNNU VEEDU, MAVARTHALA KONAM, SREEKARIYAM P.O., ULLOOR VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR RESPONDENT/PLAINTIFF; -------------------------------------- DR. RABI, MUSLIM, AGED 35, S/O. ABDUL GAFOOR, BAJI MANZIL, KULAMUTTOM P.O., VARKALA. THIRUVANANTHAPURAM. BY ADV. SRI.D.KISHORE THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 22/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AS.No. 144 of 2002(E) ORDER ON C.M.P.NO.1312/2002 IN AS NO.144/2002 DISMISSED 22/06/2010. SD/- M.N.KRISHNAN, JUDGE //TRUE COPY// P.A. TO JUDGE rs. M.N. KRISHNAN, J. ........................................... A.S.NO.144 OF 2002 ............................................. Dated this the 22nd day of June, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the First Additional Subordinate Judge's, Court, Trivandrum in O.S.No.302/1994. The suit is one for damages. It is the case of the plaintiff that an agreement was entered into between the plaintiff and the defendants on 24.2.1994 with respect to sale of 13½ cents of property. It is submitted that the plaintiff had paid advance amount of Rs.50,000/= on that day and as per the agreement, balance amount has to be paid before 30th May, 1994 and the document to be registered within a period of six months. 2. On the other hand, the defendants had denied the very execution of the agreement. The trial court on a consideration of the materials granted a decree for Rs.50,000/= with 12% interest which is the advance amount. It is against that decision, the defendants have come up in appeal. 3. Heard the learned counsel for both sides. The whole matter depends upon the agreement and it is the case of the : 2 : A.S.NO.144 OF 2002 plaintiff that there was a written agreement. It is contended that the original was entrusted to the defendants and as the defendants did not produce the original, the plaintiff had produced a photocopy. But the court below did not mark that document. When the suit is based on an agreement and if the photocopy of agreement is to be received as a secondary evidence, under the provisions of the Evidence Act it must be proved to the satisfaction of the court that original of the document is not forthcoming or that the party is incapable of producing the primary evidence. There is also a provision under Section 66 of the Evidence Act whereby one can give notice to the other party to produce documents so that all possible methods to get original can be exhausted. But, on the other hand, the case of the defendants is that of a total denial. What ever it may be, the fate of the case depends upon the acceptability of the agreement. Then only the question of breach or other things will arise. But, unfortunately, the court below did not mark the documents and had proceeded to grant a decree which is not legally sustainable. : 3 : A.S.NO.144 OF 2002 4. Therefore the judgment and decree passed by the court below are set aside and the matter is remitted back to the court below with permission to both the parties to adduce documentary as well as oral evidence in support of their respective contentions as contemplated by law in order to accept photocopy of the document as secondary evidence in the matter. Parties are directed to appear before the court below on 22.07.2010. Disposed of accordingly. M.N. KRISHNAN, JUDGE. cl : 4 : A.S.NO.144 OF 2002 M.N. KRISHNAN, J. ........................................... A.S.NO.144 OF 2002 ............................................. 22nd day of June, 2010. J U D G M E N T : 5 : A.S.NO.144 OF 2002