*HON'BLE SRI JUSTICE G. BHAVANI PRASAD +C.R.P. No.5185 of 2009 % 26/02/2010 # Syed Haji Pasha, S/o Syed Jani Miya ..... PETITIONER Vs. $ Syed Ahmed, S/o Syed Mirja Sab .....RESPONDENT ! COUNSEL FOR THE PETITIONER: Sri Mohd. Imran Khan ^ COUNSEL FOR THE RESPONDENT: Sri Mohd. Ghulam Hussain < Gist : Ø Head Note: ? CITATIONS: 1. AIR 2007 Supreme Court 1721 2. AIR 1959 Andhra Pradesh 568 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TWENTY SIXTH DAY OF FEBRUARY TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Revision Petition No.5185 of 2009 Between: Syed Haji Pasha, S/o Syed Jani Miya .. Petitioner AND Syed Ahmed, S/o Syed Mirja Sab .. Respondent ORDER: The plaintiff in O.S.No.12 of 2007 on the file of the Senior Civil Judge, Medak, filed this revision petition against the order in I.A.No.362 of 2009 in O.S.No.12 of 2007, dated 19-10-2009, whereby the request of the defendant for permission to lead secondary evidence in respect of a sale deed was allowed on payment of costs of Rs.100/- to the revision petitioner. The defendant filed the petition under Section 65 of the Evidence Act read with Section 151 of the Code of Civil Procedure claiming that the Tahsildar of Alladurg produced only an attested copy of the sale deed as the original was not traced in the Tahsil office and consequently, leading secondary evidence in respect of the sale deed is very essential. The plaintiff/revision petitioner resisted the request contending that there was no sale deed in existence as claimed and the report of the Mandal Revenue Officer, dated 28-07-2009 did not disclose the loss or misplacement or destruction of the original sale deed or where the document was so lost etc. An attested photocopy of a xerox copy is inadmissible as secondary evidence without satisfaction of the Court about the existence of the original document and its loss. The trial Court in the impugned order noted the contention of the defendant that the original ordinary sale deed was produced before the Mandal Revenue Officer, Alladurg, for validation and that the same was validated on payment of the required fee for which a certificate was issued. It also noted the contention that the original sale deed was not returned and that it was not sent to the Court when summoned through the Court. The trial Court noted that I.A.No.638 of 2008 to call for the original sale deed dated 08-08-1988 and two challans No.7801 and 7802 from the Tahsil office was allowed and that the Tahsildar only produced xerox copies of two challans and attested copy of the sale deed but not the originals. The trial Court further noted that the original challans were sent to the Court along with the letter dated 28-07- 2009, while the original sale deed was stated to be unavailable in the office. The trial Court observed that unless the original sale deed had been produced before the Tahsildar, Alladurg, the production of the attested copy obtained from the original document through a mechanical process could not have been possible and it also observed that the defendant himself never claimed that the original sale deed was lost or destroyed while in his custody to obligate him to explain such loss or destruction. Based on the admission of the Tahsildar that the original sale deed was not available, the trial Court considered that the defendant should not be penalized for any mistake of the Tahsildar and consequently, the defendant was held to be entitled to lead secondary evidence and mark the copies of the original challans and the attested xerox copy of the sale deed produced by the Tahsildar, Alladurg. The plaintiff contended herein that when the plaintiff is contending the document to be concocted and fabricated for the purpose of the suit and in the absence of any proof of submission of the original sale deed before the Tahsil office, the trial Court should not have permitted the secondary evidence. There was no proof of existence of the original sale deed at any point of time and it was held by the Apex Court that in the absence of proof of possession of the original document with any person, no foundation for leading secondary evidence can be said to have been made out. The plaintiff contended that Section 65 of the Evidence Act has no application and when the Mandal Revenue Officer never stated that the original sale deed was filed before him or that it was misplaced and when it was not proved that the original document was compared with the copy, any secondary evidence cannot be received, more so, in view of the difficulties that may be caused by receiving such document in having such document compared by a Handwriting Expert for ascertainment of the genuineness of the signatures on the document. Hence, the plaintiff sought for reversal of the impugned order. The defendant in his counter affidavit in C.R.P.M.P.No.7105 of 2009 (Petition for grant of interim stay pending the revision petition) contended that the original sale deed was filed before the Tahsildar for validation and when it was called for, the Tahsildar replied that the original sale deed was not available, due to which he was compelled to seek permission for production of secondary evidence as he had no other option. The defendant also filed copy of I.A.No.638 of 2008 wherein he stated in his affidavit about filing the ordinary sale deed and original challans before the Tahsil office, Alladurg, which were requested to be sent for. He also filed a copy of the counter affidavit of the revision petitioner herein in I.A.No.638 of 2008 stating that the documents sought to be sent for are public documents, the certified copies of which can be filed. The defendant also filed a copy of the order passed by the trial Court in I.A.No.638 of 2008 dated 05-01-2009, wherein the trial Court noted the plea of the defendant about filing the ordinary sale deed before the Tahsildar and noted that no prejudice would be caused to the plaintiff, who will be at liberty to question the document, if marked during the trial. As the trial Court considered the documents to be relevant documents not summoning which will cause prejudice to the defendant, it allowed the petition. Sri Mohd. Imrankhan, learned counsel for the revision petitioner and Sri Mohd. Ghulam Hussain, learned counsel for the respondent are heard. The point for consideration is whether the permission to adduce secondary evidence granted by the trial Court is legally and factually sustainable? Section 65 of the Evidence Act provides for secondary evidence being given relating to documents and enumerates the instances where such secondary evidence may be given of the existence, condition or contents of a document. When the original is shown or appears to be shown in the possession or power of any person legally bound to produce it and when after a notice as mentioned in Section 66 of the Evidence Act such person does not produce it, secondary evidence may be given. Similarly, when the original has been destroyed or lost or cannot be produced in a reasonable time without any default on the part of the party offering a secondary evidence, secondary evidence may be given. In either instance, among those enumerated in Section 65, secondary evidence of the contents of the document is admissible according to Section 65 of the Evidence Act. In J. Yoshada v. K. Shobha Rani[1], the Apex Court referred to the definition of secondary evidence under Section 63 of the Evidence Act, which includes copies made from the original by mechanical process, which in themselves ensure the accuracy of the copy and copies compared with such copies; and copies made from or compared with the original as well as certified copies. The Apex Court noted that secondary evidence as a general rule is admissible only in the absence of primary evidence and when a proper explanation of its absence is given. Such secondary evidence cannot be admitted without the non-production of the original being first accounted for in a permissible manner and it was made clear that it was only on the conditions of Section 65 of the Evidence Act being satisfied that secondary evidence can be admitted. In Bobba Suramma v. Peddireddi Chandramma[2] also relied on by the learned counsel for the revision petitioner, a Division Bench of this Court referred to the requirement of credible evidence of the loss of the original to claim the benefits of Section 65 of the Evidence Act. Ananta Raghuram v. Rajah Bommadevara (AIR 1958 AP 418) was relied on and in view of total paucity of evidence about an exhaustive search for the original, the Division Bench drew an inference that either the document did not exist or even if it existed, was not produced as it might be unfavourable to the party. Absence of satisfactory explanation about the missing or loss of the document led to such a conclusion. Thus, it is evident from the provisions of the Evidence Act and the precedents cited that the originals must be shown in cases like the present one to have not been produced by a person legally bound to produce them in spite of required notice or that the originals were destroyed or lost or unavailable to the party offering secondary evidence for reasons not arising from his own default or neglect. The secondary evidence sought to be produced should be such as coming within the definition under Section 63 of the Evidence Act. It is seen from the material on record that the defendant specifically stated in his affidavit in I.A.No.638 of 2008 that he filed the ordinary sale deed and original challans before the Tahsil office, Alladurg, and at his request, the trial Court ordered to produce such documents in I.A.No.638 of 2008, which order had become final. In the counter affidavit to I.A.No.638 of 2008, the revision petitioner/ plaintiff did not specifically deny the original ordinary sale deed and original challans having been filed before the Tahsil office, Alladurg and it was only contended that the documents are public documents the certified copies of which could have been obtained and the other contention is that the documents are not connected to the present case. Be that as it may, in the counter affidavit to I.A.No.362 of 2009 herein, the plaintiff questioned the existence of the sale deed and its production before the Mandal Revenue Officer obviously due to the ambiguity in the communication of the Mandal Revenue Officer about the original document being not available in his file without specifying whether the original document was filed before him or not. But the communications dated 16-07-2009 and 28-07- 2009 in pursuance of the communications from the trial Court for production of the documents would show verification of the relevant office file of the Tahsildar and the production of the two original challans as claimed by the defendant, due to which there is no reason to believe that the original ordinary sale deed also would not have been produced before the Tahsildar. The Tahsildar did not even remotely indicate the possibility of the original document being returned along with the validation certificate. The claim of the defendant for permission to lead secondary evidence due to the original document being unavailable in the Tahsil office under such circumstances, cannot be said to be not based on an allegation of the document being in the possession and power of the Tahsildar, who is not producing it in spite of notice or the inability of the defendant to produce the original document within a reasonable time due to reasons not arising from his own default or neglect. Prima facie, therefore, the conclusion of the trial Court that there is justification for permitting the defendant to lead secondary evidence of the document cannot be considered to be unfounded or improper. It cannot be said that the non-production of the original was not accounted for or that original primary evidence in the possession and power of the defendant was not produced. When the defendant claims to have produced the same before Tahsildar and the Tahsildar clearly says that it is unavailable, there could have been no other satisfactory explanation as to how the original could not have been produced and the defendant cannot be justifiably compelled to produce any further material about the circumstances under which the original document became unavailable in the Tahsildar office. Sri Mohd. Ghulam Hussain, learned counsel for the respondent has fairly conceded that what all is permitted by the impugned order is only enabling the defendant to produce secondary evidence concerning the document in question about the existence, condition and contents of the same and not on any conclusion by the trial Court on any of those aspects. Even the trial Court in I.A.No.638 of 2008 made it clear in its order dated 05-01-2009 that the plaintiff is at liberty to question the document, if marked during the course of trial. Therefore, it is clear that any evidence, which the defendant produces by way of secondary evidence concerning the existence, condition and contents of the document in question will be subject to being questioned on all permissible grounds by the plaintiff and will be further subject to the appreciation by the trial Court of the admissibility, credibility and acceptability of such evidence sought to be produced as secondary evidence. The impugned order cannot, therefore, be considered to be to the prejudice of the revision petitioner in fact or law and it cannot be interfered with. Accordingly, the Civil Revision Petition is dismissed without costs. _____________________ G. BHAVANI PRASAD, J Date: 26-02-2010 Note: L.R. copy to be marked. B/O Ksn [1] AIR 2007 Supreme Court 1721 [2] AIR 1959 Andhra Pradesh 568