HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA CIVIL REVISION PETITION No. 4163 OF 2011 DATED 9th November, 2011 BETWEEN Sri Grapati Krishna Murthy and ors …….Petitioners And Sri Garapati Venkata Subba Rao ……Respondent HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA CIVIL REVISION PETITION No. 4163 OF 2011 ORDER: This Civil Revision Petition under Article 227 of the Constitution of India is filed aggrieved by the order dated 25.07.2011 passed by the learned Principal Junior Civil Judge, Eluru in O.S.No. 29 of 2006. The respondent/plaintiff filed the aforesaid suit seeking permanent and mandatory injunctions against the petitioners/defendants in respect of the plaint schedule property. When the suit is posted for adducing evidence from the side of petitioners/defendants, they tried to mark Photostat copy of the written Memorandum of Understanding dated 10.3.2000 stated to have been handed over by to petitioner 3/defendant 3 for complying the conditions of constructing the compound wall in dispute. The learned Counsel for the respondent/plaintiff raised an objection for marking the said document on the ground that the same is a Photostat/Xerox copy and the same is inadmissible in evidence. The learned trial Judge while observing that the photo copies cannot be recorded as secondary evidence in terms of Section 63 of the Indian Evidence Act, sustained the objection raised by the learned Counsel for the respondent/plaintiff. I have heard the learned Counsel appearing on either side. Perused the case file. In three occasions, the benefit under Section 65(a) of the Indian Evidence Act,1872 can be availed, namely; (1) when the original document is shown or appears to be in the possession or power of the person against whom the document is sought to be proved; (2) when it is in the possession of any person out of reach, or not subject to the process of the Court, or in the possession of any person legally bound to produce it; and (3) in all such cases when a notice under Section 66 is issued and such person did not produce it. Section 66 lays down the rules as to issuance of notice to produce the document in original before the Court. Under this section the party who proposes to give such secondary evidence has to give a notice to the party in the first instance in whose custody the document is, and if no such notice is prescribed by law, then a notice which the Court may consider reasonable is to be issued. Section 63 of the Evidence Act lays down as to what can be termed as secondary evidence while Section 65 lays down in which situations secondary evidence can be admissible. Section 65(a) does not in any way stipulates a copy of a copy admissible in evidence as it is specifically barred under Section 63. In the case of Nawab Singh v. Inderjit Kaur (AIR 1999 SC 1668) the Apex Court held thus: “ Having heard the teamed counsel for the parties, we are of the opinion that the trial Court was not justified in rejecting the prayer seeking leave of the Court for production of secondary evidence. The prayer has been rejected mainly on the ground that the copy of the rent note sought to be produced by the appellant was of doubtful veracity. The trial Court was not justified in framing that opinion without affording the appellant an opportunity of adducing secondary evidence. The appellant has alleged the original rent note to be in possession of the respondent. The case was covered by Clause (a) of Section 65 of the Indian Evidence Act, 1872. (Emphasis added) Section 65 of the Indian Evidence Act, 1872 clearly postulates that secondary evidence may be given of the existence, conditions or contents of a document in the cases specified therein. Relevant Clauses applicable in the present case are Clauses (a) and (c). In Sital Das v. Sant Ram (AIR1954SC606) it was held that foundations for reception of secondary evidence must be clearly laid. In Ashok Dulichand vs. Madhavial Dube {[1976]1SCR246}, it was observed that circumstances in which photocopy was made from the original, must be explained before secondary evidence is allowed. Reference to the statutory provision shows that the original should be shown to be in possession of the party against whom the document is to be proved or should be shown to have been lost. At the same time, order for allowing secondary evidence cannot be passed mechanically and the court must be satisfied that prima facie, the original existed and had been lost or was in possession of the other party. A prima facie conclusion to this effect is not normally open to challenge in revision if appropriate conditions are laid down for permitting secondary evidence. A party to the proceedings is not expected to file any application requesting the court to permit him to lead the secondary evidence. All that is expected of him is to step into the witness box and lead evidence setting out the circumstances under which he is unable to produce the primary evidence. If the Court is satisfied from such evidence that a case is made out for production of secondary evidence, it can permit the party to adduce secondary evidence subject to Sections 64 and 65 of the Act. However, when such permission is granted to the party by the court to lead secondary evidence, it is open to the opposite party to object to the production of such secondary evidence, in which event the court has to mark the document subject to the objections and decide the objections at the time of final disposal of the suit on merits. In the event the objection is upheld the said documents and the evidence adduced in respect of the said documents may be ignored while deciding the case on merits. If the objection is over- ruled, the said documents and the evidence given in respect of the said documents can be taken into consideration while disposing of the case on merits. However, on the ground that the party who proposes to adduce secondary evidence has not disclosed from where, which authority he got the documents and whether the said documents are coming from a proper custody, the document cannot be received in evidence. It is totally irrelevant consideration at the time of admitting the documents in evidence. In that view of the matter, the reasoning given by the learned trial Judge for not accepting the secondary evidence is erroneous. Hence, the findings of the trial Court are require to be quashed, reserving the liberty to the petitioners-defendants to lay a proper foundation by satisfactorily explaining the reasons for not producing the primary evidence and thereafter they are at liberty to produce the secondary evidence which the Court may receive subject to the objections of the opposite party and decide the admissibility of the documents at the time of final disposal of the suit on merits. (See. Gafarsab @ Sati Gafar SAB v. Ameer Ahamed (ILR 2006 KAR 16)}. During the course of arguments before this Court, the learned Counsel for the respondent raised an objection as to insufficiency of stamp duty on the document sought to be tendered in evidence. Since the said objection was raised for the first time before this Court, the respondent/plaintiff, if so advised, may raise such objection before the Court below, which shall consider the same in accordance with law. It is the case of the petitioners that the Memorandum of Understanding sought to be marked in evidence was stated to have been executed by petitioners 1 and 2 before the elders in favor of respondent and as such the original was kept with the respondent. As such, even if the said document is allowed to be adduced as secondary evidence, no prejudice would be caused to the respondent/plaintiff. If the petitioners/defendants are unable to prove the existence of the document, the respondent/plaintiff may succeed in the suit. From the foregoing discussion, if the factual matrix in the case on hand is tested on the touchstone of the aforesaid principles of law, the document in question sought to be tendered as secondary evidence meets with the requirement of Section 65 of the Evidence Act. In that view of the matter, the order under revision is liable to be set aside, which is accordingly set aside. In the result, the Civil Revision Petition is allowed. There shall be no order as to costs. --------------------------------------------- JUSTICE ASHUTOSH MOHUNTA Dated 9th November, 2011. Msnro