IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 21ST MAY 2008 / 31ST VAISAKHA 1930 WP(C).No. 14298 of 2008(B) -------------------------- OS.1190/1994 of I ADDL.SUB COURT,TRIVANDRUM .................... PETITIONER: ------------ E.SURESH BABU, S/O KUTTAPPAN, RESIDING AT KOTTOLI AMSOM, PAREYANCHERY DESOM, KOZHIKODE TALUK. BY ADV. SRI.V.CHITAMBARESH (SR.) SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU RESPONDENTS: ------------- THE FOOD CORPORATION OF INDIA, REP; BY ITS DEPUTY MANAGER (ENGG,). REGIONAL OFFICE, KESAVADASAPURAM, THIRUVANANTHAPURAM. BY ADV. SRI.P.J.VIVEK VARGHESE, STANDING COUNSEL FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.14298 of 2008 ------------------------------- Dated this the 21st May, 2008. J U D G M E N T This petition is filed under Article 227 of the Constitution of India to quash Ext.P1 order passed by Additional Sub Judge, Thiruvananthapuram, in I.A.No.4091/2003 in O.S.No.1190/1994. At the time of evidence, petitioner produced a copy of a register, claiming to be the copy of original hindrance register maintained by the respondent, and furnished to him by PW.2. When examined, PW.2 denied the case of the petitioner that he had taken a photo copy and furnished it to the petitioner. For this reason, learned Sub Judge found that the document cannot be admitted in evidence as secondary evidence and dismissed the petition. 2. The argument of the learned senior counsel appearing for the petitioner is that as the copy produced is that of the original register to be maintained by the respondent as provided under para 29.3(ii) of C.P.W.D. Manual, Volume-II, and petitioner had filed an application directing respondent to produce the same and it was not produced, trial court should have accepted the copy produced and W.P.(C) No. 14298/2008 2 should have considered its probative value only later, and therefore, Ext.P1 order is to be quashed. He further argued that when a copy of a document is produced purporting to be copy of the original register maintained by the respondent, and inspite of an application filed by the petitioner, the original document was not produced, trial court should have admitted the photo copy as secondary evidence, and in any case, should have drawn necessary adverse inference against the respondent. 3. On hearing the learned senior counsel and going through Ext.P1 order, I do not find any reason to interfere with Ext.P1 order, in exercise of the extra ordinary powers of this Court under Article 227 of the Constitution of India. The question whether adverse inference has to be taken or not is a different matter while considering the application to receive a document as evidence, especially, when the document produced is a photo copy of the original document. Unless the photo copy is proved, it cannot be admitted in evidence. The claim of the petitioner is that it was furnished to him by PW.2. PW.2 deposed that he did not furnish any such photo copy. More over, for valid reasons, learned Sub Judge found that it cannot be treated as W.P.(C) No. 14298/2008 3 a photo copy of the original document. In such circumstances, the trial court found that the photo copy cannot be admitted in evidence. 4. It is true that even without an application by the opposite party, a party who is in custody of a document which would throw light on the matter in controversy, if produced, has a duty to produce the same and if not produced, court below is competent to draw necessary adverse inference against that party, if the document is relevant. But that is a question to be considered at the time of hearing of the suit and not while considering the admissibility of the document. Petition dismissed. M.SASIDHARAN NAMBIAR, J. JUDGE nj.