IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE NINETH DAY OF APRIL TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU CIVIL REVISION PETITION NOS.5916 OF 2007 & 133 OF 2008 CIVLI REVISION PETITION NO.5916 OF 2007 Between: R.Venkateswarlu .... PETITIONER A N D B.Krishna Reddy and others. …RESPONDENTS CIVL REVISION PETITION NO.133 OF 2008 Between: R.Venkateswarlu .... PETITIONER A N D B.Krishna Reddy and others. …RESPONDENTS THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL REVISION PETITION NOs. 5916 OF 2007 AND 133 OF 2008 COMMON ORDER: These two Civil Revision Petitions, under Article 227 of the Constitution of India, are directed against the common order, dated 13.09.2007, in I.A. Nos 1394 and 1395 of 2007 in O.S.No.2 of 2005, on the file of the I Additional District Judge, Mahabubnagar, whereunder and whereby, I.A. No. 1394 of 2007, filed to permit the petitioner to rely on Xerox copy of agreement of sale and I.A. No.1395 of 2007, to receive Xerox copy of agreement of sale as secondary evidence, were allowed. 2. The brief facts that are necessary for disposal of the present revisions may be stated as follows: 3. O.S.No.2 of 2005, was filed by the petitioner herein (plaintiff) for enforcement of specific performance based upon agreement of sale dated 30.09.2002, against the first and second respondents herein (defendants). 4. The first respondent herein filed written statement alleging that the said agreement of sale has been cancelled in pursuance of the compromise between the parties and that a fresh agreement of sale dated 19.05.2003, has been entered into between the parties including their children duly showing the consideration of Rs.52-00 lakhs. As per the new agreement of sale, the suit O.S. No.13 of 2003, on the file of Senior Civil Judge, Wanaparthy filed by the children of the first and second respondents was withdrawn and thereafter at the request of petitioner, the second respondent executed the sale deed in favour of respondent Nos. 3 to 5 in respect of part of the suit lands, but the petitioner has filed this suit on the basis of the cancelled agreement, dated 30.09.2002, suppressing the facts relating to new agreement of sale, dated 19.05.2003. Thereafter the Xerox copy of agreement of sale, dated 19.05.2003, was sought to be received as evidence on the ground that the original was in the custody of the petitioner. 5. Learned counsel for the petitioner contended that the original xerox copy of agreement of sale has been executed by parties therein and in view of the fact that the photo-stat copy cannot be received as evidence. It is also contended that Xerox copy of agreement contained recitals with regard to delivery of possession, necessary stamp duty and penalty has been paid under Section 47-A of the Indian Stamp Act and therefore, he prays to set a side the impugned order. 6. On the other hand, learned counsel for the respondents contended that the original agreement of sale has been executed by the petitioner, that proper foundation has been laid for receiving the Xerox of agreement of sale, it is stated that a notice was given to the petitioner to produce the original, for which there was no reply and therefore, secondary evidence has been let in to receive the copy of agreement of sale and therefore, secondary evidence can be accepted and therefore, he prays to dismiss the revisions. 7. If the copy of the document comes within the meaning of Section 63 of the Indian Evidence Act, 1872 it can be said to be a secondary evidence. Section 63 (2) of the Evidence Act reads thus: “Copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies”. 8. The secondary evidence may be permitted to let in when any one of the conditions as required under Section 65 of the Evidence Act is fulfilled. One such condition is that the original document is shown to be in the custody of the opposite party. In such a case a notice under Section 66 of the Act has to be given directing the opposite party to produce the original. 9. As seen from the allegation in the affidavit filed in support of the petition it is clear that the petitioner got issued registered notice to respondent to produce the original dated 19.05.2003. The said allegation has not been denied or disputed in the counter filed by the respondents therein. Therefore, prima facie the respondents herein have complied with Section 66 of the Indian Evidence Act. If that is the case, the document can be received as evidence. The respondents have complied with Sections 65 and 66 of the Indian Evidence Act. Perhaps that is the reason why the trial court rightly allowed the petition to receive the documents, but the contention that Xerox copy is required stamp duty and penalty has to be decided by the trial court at the time of marking the document. Similarly the admissibility and relevancy of the document has to be decided at later point of time but not at this stage when the document is sought to be received. 10. However, the learned counsel for the petitioner relied upon a decision reported in SMT J.YASHODA VS. SMT K.SHOBHA RANI[1], wherein it is held thus: “The admitted facts in the present case are that the original was with one P.Srinivas Rao. Only when conditions of Section prescribed in Section 65 are satisfied, documents can be admitted as secondary evidence. In the instant case clause (a) of Section 65 has not been satisfied. Therefore, the High Court’s order does not suffer from any infirmity to warrant interference”. Even the above decision would clearly go to show that the conditions as required under Section 65 of the Act are fulfilled, then the documents can be received as secondary evidence. 11. He also relied upon a decision reported in M.VENKATA RAO VS. M. SHESHAGIRI RAO[2], wherein it is held thus: “Admittedly, the document, which is required to be sent for impounding is a photocopy of the document and the original has not been produced before the Court below. Therefore, the same cannot be an instrument, which can be impounded under the Indian Stamp Act, 1899. May be, the Court below has agreed to receive the said document as secondary evidence, but that does not mean that the same can be impounded. The Court below has rightly taken note of this fact and considered the matter in right perspective and dismissed the petition by the impugned order. I am of the opinion that no illegality has been committed by the Court below, warranting interference of this Court under Article 227 of the Constitution of India. The civil revision petition is devoid of merits and is liable to be dismissed”. 12. That issue has to be decided in the trial court. 13. Accordingly, the Civil Revision Petitions are dismissed. It is made clear that the petitioner can raise any objection before the trial court with regard to the payment of stamp duty and penalty and the trial court shall consider the same in accordance with law. No costs. _______________ K.C.BHANU. J APRIL 09, 2010. YVL [1] AIR 2007 Supreme Court 1721 [2] 2009-ALT-2-662