*THE HON'BLE SRI JUSTICE P.S.NARAYANA +C.R.P.No.290 of 2009 % 6-7-2010 # E.Satyanarayana Reddy .. Petitioner Vs. $ Ch.Muralidhar Reddy .. Respondent <GIST: >HEAD NOTE: ! Counsel for petitioner : Sri P.V. Narayana Rao ^ Counsel for respondent : ? CASES REFERRED : 1. AIR 1992 P&H 145 2. AIR 1982 Madras 372 THE HON'BLE SRI JUSTICE P.S.NARAYANA C.R.P.No.290 of 2009 Date : 6-7-2010 Between: E.Satyanarayana Reddy .. Petitioner And Ch.Muralidhar Reddy .. Respondent THE HON'BLE SRI JUSTICE P.S.NARAYANA C.R.P.No.290 of 2009 ORDER: 1. Heard Sri P.V. Narayana Rao, the learned Counsel representing the Revision petitioner/plaintiff. The respondent/defendant had been served and none represents the respondent/defendant. 2. This Civil Revision Petition is filed under Article 227 of the Constitution of India by the Revision petitioner/plaintiff being aggrieved of the order made in I.A.No.1442/2008 in O.S.No.251/2004 on the file of II Additional Junior Civil Judge, Warangal. The said application was filed under Section 65 of Indian Evidence Act (in short hereinafter referred to as “Act” for the purpose of convenience) and Section 151 of the Code of Civil Procedure (hereinafter in short referred to as “Code” for the purpose of convenience) to permit the petitioner to lead secondary evidence in respect of the agreement dated 21-1-1981 and affidavit dated 7-8-1989. The learned II Additional Junior Civil Judge, Warangal after recording reasons came to the conclusion that such documents cannot be permitted by way of secondary evidence and ultimately the said application was dismissed. Aggrieved by the same, the present Civil Revision Petition had been preferred. 3. Sri P.V. Narayana Rao, the learned Counsel representing the petitioner had taken this Court through Section 8 of Notaries Act 1952 and also had drawn the attention of this Court to Section 63(2) & (3) of the Act and Section 65 of the Act as well and further strongly relied on Banarsi Dass Vs. Maman Chand [1] and Pandurangan Vs. Sarangapani and another [2] and would contend that in the light of clear legal position, the order made being unsustainable, the same is liable to be set aside. 4. Heard the Counsel. 5. The Revision petitioner filed I.A.No.1442/2008 in O.S.No.251/2004 on the file of II Additional Junior Civil Judge, Warangal under Section 65 of the Act and Section 151 of the Code praying for permission to lead secondary evidence in respect of agreement dated 21-1-1981 and affidavit dated 7-8-1989. The averments made in the affidavit filed in support of the application are that the petitioner had filed certified copies of the agreement dated 21- 1-1981 and sworn affidavit before Mandal Revenue Officer, Warangal. The original of the agreement dated 21-1-1981 was in between the defendant and M/s.Kulothama Development Corporation, a registered firm and since the said document is in custody of third party, the petitioner was unable to file the original and mark the same. The petitioner also obtained sworn affidavit of respondents filed before the Mandal Revenue Officer which was notarized and he obtained the certified copy of the said affidavit. The original of the said affidavit is in the office of the Mandal Revenue Officer, Hanamkonda and the same could not be produced. In the said circumstances, the petitioner prayed for permission to lead secondary evidence. 6. Counter was filed denying the very execution of the agreement dated 21-1-1981 and it is stated that relating to these documents no foundation as such had been laid in the pleadings and in the absence of the same, permission to let in secondary evidence cannot be granted. Several other further averments also had been made in the counter. 7. The learned II Additional Junior Civil Judge, Warangal having formulated the Point for consideration: Whether the petitioner can be permitted to lead secondary evidence in respect of copy of agreement dated 21-1-1981 and also sworn affidavit dated 7-8-1989 ?, referred to Section 65 of the Act and also observed that relating to these documents since no foundation had been laid in the pleadings, such permission cannot be granted and accordingly the said application was dismissed. 8. Section 8 of the Notaries Act 1952 dealing with Functions of notaries reads as hereunder:- (1) A notary may do all or any of the following acts by virtue of his office, namely :- (a) verify, authenticate, certify or attest the execution of any instrument; (b) present any promissory note, hundi or bill of exchange for acceptance or payment or demand better security; (c) note or protest the dishonour by non-acceptance or non- Payment of any promissory note, hundi or bill of exchange or protest for better security or prepare acts of honour under Negotiable instruments Act, 1881, or serve notice of such note or protest; (d) note and draw up ship's protest, boat's protest or protest relating to demurrage and other commercial matters; (e) administer oath to, or take affidavit from, any person; (f) prepare bottomry and respondentia bonds, charter parties and other mercantile documents; (g) prepare, attest or authenticate any instrument intended to take effect in any country or place outside India in such form and language as may conform to the law of the place where such deed is intended to operate; (h) translate, and verify the translation of, any document from one language into another; (ha) act as a Commissioner to record evidence in any civil or criminal trial if so directed by any court or authority, (hb) act as an arbitrator, mediator or conciliator, if so required; (i) any other act which may be prescribed. Strong reliance was placed on Section 8(a) and (e) of the Notaries Act 1952 aforesaid in particular. It is needless to say that Section 8(a) of the said Act specifies that “a notary may verify, authenticate, certify or attest the execution of any instrument”. Section 8(e) specifies that “a notary may administer oath to, or take affidavit from, any person”. Strong reliance was placed on the decision referred (1) supra wherein the learned Judge, at paras 2, 3 and 4, observed: “Learned Counsel for the appellant has argued that the lower appellate court wrongly considered documents Exhibit D.2 to Exhibit D.4 as admissible in evidence. These documents are copies of the copies as is shown from the endorsement made thereon by the Notary. Since the defendant did not lead any evidence of existence of the original, the secondary evidence could not be led. After giving due consideration to the arguments aforesaid and considering the evidence produced, I find no merit in this contention. These three documents bear the endorsement of Notary as under : “Attested the true photo copy of the original documents”. Learned Counsel for the appellant wanted the aforesaid endorsement to be read as : “Attested the photo copy of the document” which is not correct. The judgment of this Court in Hira Vs. Smt.Gurbachan Kaur (1988) 94 PLR 173, was pressed into service by counsel for the appellant in support of his contention that copy of the copy would be inadmissible in evidence, more so, when the person who had made the copy had not been produced. That was a case where plea of forgery was taken and original was not produced at the initial stage and subsequently secondary evidence was sought to be produced which was declined. The ratio of the decision aforesaid cannot be applied to the facts of the case in hand. The Notary has given the certificate of attestation on these three documents as reproduced above. He was competent to record such certificate as provided under Section 8 of the Notaries Public Act, extract of which is as under : “8.Function of notaries: (1) A notary may do all or any of the following acts by virtue of his office, namely:- (a) verify, authenticate, certify or attest the execution of any instrument;. The words “verify”, “authenticate”, “certify” or “attest the execution” of any instrument are not synonymous words as provided under Section 8 referred to above. These are separate acts to be performed by the Notary in respect of instruments. Execution of instruments can be attested by the Notary. At the same time the Notary can also verify the instrument or show it to be authenticated or certify its correctness. What is done in the present case is that he had certified that the photo-copy was true copy of the original. Thus, it was not necessary for the defendant to produce the Notary who had recorded certificate of attestation as witness in the case. His attestation as aforesaid has to be taken into consideration as conclusive evidence. Since the attestation showed that the document was true photo copy of the original document, it is taken that Notary had compared the photocopy produced, with the original document.” The question of proof of document is entirely different from its admissibility. Admittedly, original of all these three documents were not produced in this case. Photo copies with due attestation were produced as above. Section 63(2) and (3) of the Evidence Act reads as under : “63. Secondary evidence :- Secondary evidence means and includes : (2) copies made from the original by mechanical process which in themselves ensure the accuracy of the copy, and copies compared with such copies; (3) copies made from or compared with the original”. The case in hand would be covered by the aforesaid two clauses of Section 63. Maman Chand, defendant, appeared as DW.1. He is the attesting witness of these three documents Exhibits D.2, D.3 and D.4. He was thus competent to prove the documents. He has specifically mentioned in his statement that these documents were executed by the executants and he attested the same. DW.3, Subhash Chand, Petition Writer, DW.6 Rattan Lal and DW.7 Chander Sain have also proved rent-note Exhibit D.4. Thus these documents were correctly admitted into evidence in appeal though in the trial Court it was objected on behalf of the plaintiff. The very fact that the Notary had given the certificate that he had compared these copies from the original these photo-copies could be admitted into evidence. The execution of the document is duly proved by the statement of aforesaid witnesses. The ratio of the decision of this Court in Gurditta Vs. Balkar Singh (1989) 95 PLR 418, that in the absence of existence order the original even photo-copies could not be taken into consideration, is not applicable to the case in hand. The contention of Counsel for the appellant in this respect is, therefore, repelled”. 9. Further reliance was placed on the decision referred (2) supra wherein the learned Judge of Madras High Court, at para-13, observed : “Learned Counsel for the respondent submitted that in the case of a document executed before a Notaire, it must be presumed that the document is a valid one. He went to the extent of submitting that the validity of such a document is conclusive. It is true that a Notaire is not in the same position as Registering Authority under the Indian Registration Act and that he combines in himself certain other functions as shown by the decision of this court in Mourougaessa Mudeliar Vs. Aguilandammallee (died) App.No.422 of 1969 judgment dated 7-12-1977 by a Bench of this court consisting of Ismail J. The functions of a Notaire are not strictly identical with those of the officials empowered to register the documents under the Indian Registration Act. However, as brought out in an article by L.Neville Brown of the University of Lyons in Vol.II 1953, of the International and Comparative Law Quarterly, it is possible to impeach the transaction on the score of falsity by appropriate evidence. The impeachment for falsity is a very involved and costly procedure under the French Law. In terms of the Indian conditions, the impeachment could be by a suit supported by proper evidence to show that the transaction was a false one. In the present case, there is no such convincing proof that the transaction was in any manner false. It appears as if the transaction is being challenged as a kind of normal transaction not supported by consideration. The Court below has pointed out that the document was executed before a Notary Public who had the duty to examine personally the parties and to ascertain that they are fit and able to give their consent to the transaction. The burden of proof that lay on the plaintiff to show that the Notaire’s duty had not been properly performed in the present case has not been discharged. The result is that the validity of the alienation is not assailable on any grounds taken by the plaintiff.” 10. Chapter V of the Act deals with Documentary evidence. Section 61 of the Act deals with Proof of documents. Section 62 of the Act deals with Primary evidence. Section 63 of the Act deals with Secondary evidence which reads as hereunder:- Secondary evidence means and includes:- (1) certified copies given under the provisions hereinafter contained; (2) copies made from the original by mechanical processes which in themselves insure the accuracy of the copy and copies compared with such copies; (3) copies made from or compared with the original; (4) counterparts of documents as against the parties who did not execute them; (5) oral accounts of the contents of a document given by some person who has himself seen it. The illustrations read as hereunder:- (a) A photograph of an original is secondary evidence of its contents though the two have not been compared, if it is proved that the thing photographed was the original. (b) A copy compared with a copy of letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original. (c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence; but the copy not so compared is not secondary evidence of the original although the copy from which it was transcribed was compared with the original. (d) Neither an oral account of a copy compared with the original nor an oral account of a photograph or machine copy of the original, is secondary evidence of the original. 11. Strong reliance was placed on sub-sections (2) & (3) of Section 63 of the Act aforesaid. Section 65 of the Act deals with Cases in which secondary evidence relating to documentary evidence may be given and the said provision reads as hereunder:- Secondary evidence may be given of the existence, condition or contents of a document in the following cases:- (a) when the original is shown or appears to be in the possession or power – of a person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it; and when, after the notice mentioned in Section 66, such person does not produce it; (b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest; (c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising 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 of Section 74; (f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India, to be given in evidence; (g) when the originals consist of numerous accounts or other 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 the document is admissible. In case (b), the written admission is admissible. In case (e), or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents. 12. The merits and demerits, the truth or otherwise and the validity of the documents may be gone into at the appropriate stage. However, in the facts and circumstances, in the light of Section 8 of the Notaries Act 1952 and also in the light of Section 63(2)(3) of the Act aforesaid and also in the light of the view expressed by the learned Judge of the High Court of Punjab and Haryana in the decision referred (1) supra, this Court is of the considered opinion that negativing the relief prayed for by the Revision petitioner on the ground that there is no factual foundation in the pleadings cannot be sustained. Even otherwise Sri Narayana Rao, the learned Counsel representing the Revision petitioner/plaintiff pointed out to the relevant portions of the plaint which had been placed before this Court and would maintain that the said observation made by the learned II Additional Junior Civil Judge, Warangal also cannot be sustained. Specifically the learned Counsel pointed out to para-2 of the plaint wherein the factual foundation in fact had been laid even in the plaint. Be that as it may, inasmuch as the other merits and demerits relating to these documents may have to be gone into at the appropriate stage, refusing the permission at this stage on such reasons may not be just and proper and may not be in accordance with law. 13. In the light of the same, the impugned order is hereby set aside and the Civil Revision Petition is allowed. No order as to costs. _____________________ Justice P.S.Narayana Date : 6-7-2010 L.R. copy to be marked : YES / No AM [1] AIR 1992 P&H 145 [2] AIR 1982 Madras 372