IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 11TH DECEMBER 2008 / 20TH AGRAHAYANA 1930 WP(C).No.36622 of 2008(I) -------------------------------- AGAINST THE ORDER IN IA.1762/08 IN OS.30/2008 of SUB COURT, KOYILANDY .................... PETITIONER: --------------- S.V.SHAMEENA, W/O. KATTAYIL MUSTHAFA, 27 YEARS, PARTNER, M/S.SAHARA JEWELLERY RESIDING AT SHAMEEMA VIHAR, KODIKKAL, THIKKODI, KOZHIKODE DIST BY ADV. SRI.R.K.MURALEEDHARAN RESPONDENTS: ----------------- 1. SAYED HUSSAIN BAFKY, S/O. SAYED ZAIN BAFAKY, RESIDING AT FLAT NO 2.B CROSS WINDS, KANNUR ROAD, CALICUT-1, KOZHIKODE DISTRICT KERALA STATE. 2. M/S SAHARA JEWELLERY, MELADY TOWN IN PAYYOLI PANCHAYAT, REPRESENTED BY ITS MANAGING PARTNER,KATTAYIL MUSTHAFA, S/O.MOOSA, AGED ABOUT 35 YEARS, RESIDING AT KATTAYIL HOUSE, KALARIKANDY ELATHUR POST, KOZHIKODE DISTRICT. 3. KATTAYIL MUSTHAFA, S/O. MOOSA, AGED ABOUT 35 YEARS, RESIDING AT KATTAYIL HOUSE KALARIKANDY, ELATHUR POST KOZHIKODE DISTRICT. 4. T.V.ABDUL NAZAR, S/O. MUHAMMED, AGED ABOUT 30 YEARS, RESIDING AT 'SHAAD' KURUVANGAD, PANTHALAYANI VILLAGE, KOYILANDY TALUK, KOZHIKODE DISTRICT. WP(C).No.36622 of 2008(I) -2- 5. C.A.HANZAL, S/O. ABDURAHIMAN, AGED ABOUT 27 YEARS, RESIDING AT CHERUKKAL HOUSE, THALAKKULATHUR POST, KOZHIKODE DISTRICT, KERALA STATE. (NAME OF R5/D5 IN O.S. IS WRONGLY SHOWN AS WILSON IN I.A. AND ITS ORDER) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.36622 of 2008 ------------------------------------------------ Dated this the 11th day of December, 2008 JUDGMENT Petitioner is the third defendant in O.S.30/08 on the file of the Sub Court, Koyilandy. He filed I.A.1762/08 in the court below to receive Ext.P6 which is stated to be a copy of the reconstituted partnership deed signed by the plaintiff herself and the second defendant. When the document was attempted to be marked in cross examination of PW1 marking was objected by the counsel for the plaintiff on the ground that the document being a copy it cannot be admitted in evidence. Thereupon, the petitioner offered to pay stamp duty and penalty and that was also objected by the counsel for the plaintiff. The learned Sub Judge vide Ext.P7 order refused to admit Ext.P6 copy in evidence and hence, this Writ Petition by the third defendant who was W. P. C. No.36622 of 2008 -2- petitioner in I.A.1762/08. 2. It is vehemently contended before me by the learned counsel for the petitioner that the original of the partnership deed is with the second defendant, a partner of the firm who is now absconding and that therefore, the petitioner being a retiring partner under Ext.P6 was keeping only a duplicate copy of the original and that should have been allowed to be marked by the court below. 3. The court below has assigned more than one reason to refuse admission of the said document and it is the correctness of the said reasons that requires to be considered by this Court. The court below has observed that the plaintiff had filed I.A.992/08 for a direction being given to the petitioner/third defendant to produce the partnership deed made mention of in her written statement whereunder she had retired from the partnership. According to W. P. C. No.36622 of 2008 -3- petitioners it is the very same document that is now produced as Ext.P6 in this Writ Petition and was attempted to be got marked on the side of the petitioner/third defendant. 4. It is submitted by counsel for the respondent/plaintiff that an order had been passed on I.A.992/08 ordering production of document called for by the third defendant as no affidavit of documents was filed and that is not denied by the counsel for the petitioner. When an order is passed for production of a document and that is not produced and is withheld, adverse inference is to be drawn against the party who has withheld the document and had not even filed an affidavit of document swearing that the document is not in her possession. Further, if at all the original was not in the possession of the petitioner, she could have produced the copy which is now produced stating that she is W. P. C. No.36622 of 2008 -4- having only the copy of the document with her. She having not done so or produced document ordered to be produced she cannot come forward now to have the copy admitted in evidence, without the consent of the other party/ plaintiff or an order of court, under Section 164 of the Indian Evidence Act. So by no means the document even if it is original could be admitted in evidence on the request of the petitioner/third defendant. 5. Now the question is whether the said document could have been allowed to be marked assuming that there was no such order on I.A.992/08. What is produced is only a photostat copy stated to be a duplicate copy taken along with the original. The document cannot be one taken along with the original as it is only a photostat copy. The conditions for admissibility of secondary evidence do not stand satisfied in the instant case. Even W. P. C. No.36622 of 2008 -5- assuming that the document produced is a true photostat copy then it is a case where no stamp duty is paid on the original partnership deed as the copy shows that it is on plain paper. Unless it is shown that the original is duly stamped a duplicate copy even is inadmissible. 6. Now the contention of the first respondent/plaintiff is that the parties intended to execute a partnership deed on the lines of Ext.P6 now produced before court; that Ext.P6 was a draft of the deed which the parties agreed to enter into but that no partnership deed was executed as was agreed to, as the second defendant in the meanwhile absconded. It is the case of the petitioner/ third defendant also that the second defendant is absconding. In the circumstances, on no ground can Ext.P6 produced before this Court, admission to which in evidence was refused W. P. C. No.36622 of 2008 -6- vide Ext.P7 order, be allowed to be admitted in evidence. 7. In the result, upholding Ext.P7 order passed by the court below on I.A.1762/08 I dismiss this Writ Petition. K.P.BALACHANDRAN, JUDGE kns/-