Judgement

This Civil Revision Petition is directed against the order dated 10.12.2008 in I.A. No.486 of 2008 in O.S. No.583 of 2000 on the file of the V Additional Senior Civil Judge (Fast Track Court), Ranga Reddy district, whereunder and whereby the petition filed under Section 65 of the Indian Evidence Act, 1872 (for short, the Act, 1872) to permit the plaintiff to lead secondary evidence to prove the contents of the agreement of sale dated 05.02.1986, was allowed.

2. The petitioners herein are defendants 1, 3, 4, 6, 7, 9 to 15, and the first respondent herein is the plaintiff, in the suit. The other respondents herein, who are defendants 2, 5, 8, 16 and 17 are shown as not necessary parties to this revision petition.

3. For better appreciation of facts, the parties are hereinafter referred to, as they are arrayed in the suit.

4. The brief facts are that, the plaintiff filed the application stating that, he filed the suit for specific performance of agreement of sale against the defendants basing on an agreement of sale dated 05.02.1986; that, after filing of the suit, the plaintiff shifted his house on 27.2.1999 and while shifting the house, the original agreement of sale was lost; that, he made several efforts to trace out the original agreement of sale, but the same could not be traced till the date of filing of the petition, and therefore, he filed the petition seeking permission to receive the notarized copy of the agreement of sale dated 05.02.1986 as secondary evidence.

5. The defendants 1, 3 to 13 and 15 to 17 filed their counter denying the averments in the petition and stating that the main suit for specific performance of contract is filed basing on a fake, forged and created agreement of sale dated 05.02.1986; that, the defendants neither sold the schedule property to anybody nor signed nor put their impressions, on any document, and that they have not received any consideration nor issued any receipts; that, when the original agreement of sale was misplaced and not traced, how the Notary attested its copy without seeing the original, is not explained; that the photocopy of the document containing attestation of Notary is created one; that, the plaintiff did not give any paper publication or lodge police complaint when the basic suit document was lost; that the Notary or attestation by itself is fraud and there is no legal sanctity in the eye of law. Hence, they prayed to dismiss the petition.

6. The trial Court, after considering the material on record, held that, prima facie, the petitioner had shown that the original agreement of sale has been lost beyond recovery while shifting the house of the plaintiff in the year 1999 and that the Court is entitled to reject any document which is irrelevant and inadmissible at any stage of the case, and accordingly, allowed the petition. Challenging the same, the present petition is filed.

7. Now, the point for consideration is whether the order of the trial Court is correct, legal and proper?

8. The learned counsel for the revision petitioners contended that the first respondent has not given any particulars as to how and in what manner, the original agreement of sale was lost; that the affidavit filed in support of the application does not contain particulars of circumstances under which the original has been lost; that the petitioners/defendants are seriously disputing about the very execution of the agreement of sale dated 05.02.1986, and therefore a photocopy of the disputed document cannot be admitted as secondary evidence; that the photocopy of the document, which is not capable of being compared with the original, cannot be admitted as secondary evidence. Hence, he prays to set aside the impugned order.

The learned counsel placed reliance on several decisions, which will be referred to, at appropriate time.

9. On the other hand, the learned counsel for the first respondent contended that the first respondent has given proper explanation with regard to misplacement of the original suit document; that as the original document is not traceable and as its attested copy, which was compared by a Notary, is available, the same has to be read as evidence in view of Section 65 of the Act, 1872; that, the admissibility or relevancy of the attested copy of the document can be tested at a later point of time; that, specific pleas have been taken in the plaint with regard to execution of the agreement of sale dated 05.02.1986; that, the trial Court, after an elaborate consideration of the material on record, rightly allowed the petition, and there is no error apparent on the face of the record so as to interfere with the impugned order. Hence, he prayed to dismiss the Civil Revision Petition.

10. The suit is filed by the first respondent/plaintiff for enforcement of specific performance of agreement of sale dated 05.02.1986. According to the plaintiff, one Chintapati Yelamaiah executed agreement of sale on 05.02.1986 agreeing to sell Ac.11.00 of land in survey Nos. 721, 722 and 723 situated at Korremul village and Gram Panchayat, Ghatkesar Mandal, Ranga Reddy district, for a total sale consideration of Rs. 5,39,000/-, and at the time of entering into the agreement of sale, the plaintiff paid a sum of Rs. 50,000/- as advance money; that, the defendants 5 and 11 and late Chintapati Yelamaiah represented by his legal representatives defendants 1 to 4, admitted the same; that, thereafter, the plaintiff paid certain amounts towards balance sale consideration totaling to Rs.5,39,000/- as evidenced by the receipts issued by the defendant No.11 as General Power of Attorney holder of defendants, and all the defendants acknowledged the receipts; that, thereupon, the plaintiff got issued notice to the defendants calling upon them to execute registered sale deed, and when they did not do so, the present suit is filed.

11. The present application is filed by the plaintiff under Section 65 of the Act, 1872, seeking permission of the Court to lead secondary evidence to prove the contents of the agreement of sale dated 05.02.1986 as its original was lost while shifting his house on 27.02.1999. As per Section 63(3) of the Act, 1872, a copy made from or compared with the original, is secondary evidence of its contents. A copy compared with the original by copying machine is secondary evidence. Secondary evidence of a document can be allowed to be let in, only when the original was shown to have lost or misplaced.

12. Secondary evidence, as a general rule, is admissible in the absence of primary evidence in certain circumstances enumerated in Section 65 of the Act, 1872. Under Section 65(c) of the Act, 1872, 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 a reasonable time, secondary evidence may be given of the existence. Section 65(c) comes into play where the original has been destroyed or lost, and when the party has made diligent search for it and exhausted all the sources and means available for its production, secondary evidence is admissible. The word loss signifies merely that it cannot be discovered. But, the party who wanted to place reliance on the secondary evidence, made a search with such diligence as was reasonable upon the facts of the case. The evidence of a document being lost, upon which secondary evidence may be given of its contents, may vary much according to the nature of the document, the custody it is in, and indeed the surrounding circumstances of the particular matter before the Court. In order to admit secondary evidence, it is important to bear in mind the nature of the document, the enquiries made about the original, and the evidence about the search and loss. If an instrument be lost, the party seeking to give secondary evidence of its contents, must give some evidence that the original existed once and must then establish its loss by proof that a search has been unsuccessfully made for it, in the place or places where it was most likely to be found and of persons likely to have possession of the same. So, the party must show that, in good faith, he has exhausted reasonable source of information and means of discovery which the nature of the case would naturally suggest. Loss can never be proved absolutely and evidence regarding loss of the document by the person in whose custody the document ought to be, is yet to be established during trial. But, at this stage, a bare statement of person required to file document on affidavit that the document was lost, would be sufficient to permit to lead secondary evidence.

13. In the case on hand, a copy of the original agreement of sale dated 05.02.1986, was attested by a Notary, which is now sought to be received as secondary evidence. The learned counsel for the petitioners herein vehemently contended that Notary is not empowered to attest a true copy, but he has only to verify, authenticate, certify or attest the execution of any instrument, under Section 8 (1) (a) of the Notaries Act, 1952, and therefore, attested copy of the document by a Notary is not to be included as a certified copy within the meaning of Section 63 of the Act, 1872.

14. Under Section 8 (1) of the Notaries Act, 1952, a Notary may do all or any of the acts mentioned therein, by virtue of his office. Under section 8 (1) (a), Notary can verify, authenticate, certify or attest the execution of any instrument. It is clear from the above provision that, a Notary cannot only certify or attest execution of any instrument, but also verify and authenticate the execution of the instrument. The point whether a Notary is competent to attest copy of a document basing on the original document, is a matter to be decided after adducing evidence, but not at this stage. Though the affidavit filed in support of the interlocutory application is silent at what point of time the Notary attested the true copy of the document and whether he compared copy with the original, those are the matters required to be established during trial. Therefore, at this stage, no finding can be recorded that a Notary is not competent to attest a copy of a document after comparing the same with the original.

15. The learned counsel for the petitioners relied on an unreported decision of this Court dated 18.02.2005 in C.R.P. No.5946 of 2003 (between K. Shobha Rani and J. Yashoda), wherein it is held thus :

"..the requirement of Section 63 of the Indian Evidence Act is that a document can be received as an evidence under the head of secondary evidence only when the copies made from or compared with the original are certified copies or such other documents as enumerated in the above Section. Since the photocopies are not one of the modes of receiving the documents as secondary evidence as per Section 63 of the Evidence Act, they ought not to have been received by the learned Judge."

The said judgment was confirmed by the Apex Court in J. Yashoda v. K. Shobha Rani., AIR 2007 SC 1721 wherein it is held thus :

"Under Section 64, documents are to be provided by primary evidence. Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said Section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the Section."

It is a decision where Photostat copies of the document were sought to be marked as secondary evidence. In those circumstances, it is held that a document can be received as evidence under the head of secondary evidence only when the copies made from or compared with the original or certified copies or such other documents as enumerated in the above section. Since the document in question in this case is an attested copy of the original, the above decision has no application to the facts of the present case.

16. The learned counsel for the petitioners also placed reliance on a decision in Ram Suresh Singh v. Prabhat Singh alias Chhotu Singh and another, (2009) 6 SCC 681 : (AIR 2009 SC 2805) wherein it is held that, we may not consider the certificate granted by the Principal of the latter school as only a Xerox copy thereof was filed inasmuch as the original having not been produced, the same was inadmissible in evidence. That is a case where Xerox copy of the age certificate was sought to be marked. Hence, the above decision has no application to the facts of this case.

17. Similarly, the learned counsel for the petitioners also placed reliance on a decision in Badrunnisa Begum v. Mohamooda Begum, AIR 2001 AP 394 wherein it is held thus :

"Therefore, Section 63 of the Evidence Act lays down what can be termed a secondary evidence and Section 65 lays down in which situations secondary evidence can be led. Section 65(a) does not in any way make a copy of a copy admissible in evidence as it is barred under Section 63."

It is also a case where a photocopy of re-conveyance agreement was marked without producing the original agreement. Therefore, in those circumstances, it is held that a copy of a copy is not admissible in evidence as it is barred under Section 63 of the Act, 1872.

18. The learned counsel for the petitioners also relied on a decision in Roman Catholic Mission v. State of Madras and another, AIR 1966 SC 1457 wherein it is held thus :

"The originals were not produced at any time nor was any foundation laid for the establishment of the right to give secondary evidence."

The decision has no application to the present case in view of the fact that a prima facie explanation was offered by the first respondent herein with regard loss of the original document while shifting his house.

19. The learned counsel for the petitioners also relied on a decision in Sital Das v. Sant Ram and others, AIR 1954 SC 606 wherein it is held thus :

"In this case, no foundation was laid for reception of secondary evidence under Section 65 of the Evidence Act, nor can the copy produced be regarded as secondary evidence within the meaning of section 63. In these circumstances, we must hold that the will alleged to have been executed by Kishore Das in the year 1911 has not been proved and the translation of an alleged copy of it which has been produced in this case should be excluded from consideration."

There is no dispute about the above proposition of law laid down by the Apex Court.

20. The learned counsel for the petitioners also placed reliance on a decision in Govt. of A.P. and others v. Karri Chinna Venkata Reddy and others, AIR 1994 SC 591 wherein Photostat copies of certified copies of the Survey Land Registers were received in evidence. In those circumstances, it is held that admission of additional document by the High Court in writ jurisdiction is in exercise of discretion with which the Supreme Court does not normally interfere, but the genuineness of documents is an aspect which goes to the root of the matter. Therefore, the Supreme Court held that the appropriate authority shall record finding after examining the original records. So, the said decision has no application to the present facts of the case.

21. The learned counsel for the petitioners also placed strong reliance on a decision in Kalyan Singh v. Smt. Chhoti and others, AIR 1990 SC 396 wherein it is held thus : (para 25)

"The High Court said, and in our opinion very rightly, that Ex. 3 could not be regarded as secondary evidence. Section 63 of the Evidence Act mentions five kinds of secondary evidence. Clauses (1), (2) and (3) refer to copies of documents; clause (4) refers to counter-parts of documents and clause (5) refers to oral accounts of the contents of documents. Correctness of certified copies referred to in clause (1) is presumed under Section 79; but that of other copies must be proved by proper evidence. A certified copy of a registered sale deed may be produced a secondary evidence in the absence of the original. But in the present case Ex. 3 is not certified copy. It is just an ordinary copy. There is also no evidence regarding content of the original sale deed. Ex. 3 cannot therefore, be considered as secondary evidence. The appellate Court has a right and duty to exclude such evidence."

Even the above decision would not be helpful to the case of the petitioner inasmuch as copy of a document was sought to be received as evidence without the original document. Unless a copy of a document fits into any one of the clauses in Section 63 of the Act, 1872, leading of secondary evidence to prove such a document is not permissible under law.

22. The learned counsel for the petitioners further placed reliance on a decision in Smt. Bobba Suramma v. Smt. Peddireddi Chandramma, AIR 1959 AP 568 wherein it is held thus :

"In order to claim the benefits of Section 65 of the Indian Evidence Act, there should be credible evidence of the loss of the original. As pointed out by one of us in Ananta Raghuram v. Rajah Bommadevara, AIR 1958 Andh Pra 418 at p. 421 (Srinivasachari J.)"

there must be sufficient proof of the search for the original to render secondary evidence admissible. It must be established that the party has exhausted all the sources and means in the search of the document which were available to him.

"The above decision shows that an opportunity shall be given to the parties to produce necessary evidence with regard to leading the secondary evidence.

23. In the case on hand, copy of the agreement of sale dated 05.02.1986 is attested by. a Notary as Photostat copy of the original. Photostat copy of a document is admissible in evidence, provided it is certified as a true copy. Section 63(3) of the Act, 1872, prescribes two alternatives viz. first that it may be a copy made from the original, and or second that it must be a copy compared with the original. To term as copy, it must have support of the witnesses qualified to show that it represents the contents of the original document, and then the copies compared with the original are admissible as secondary evidence. If either of the two requirements are satisfied, then the document would be a proper and valid secondary evidence. In other words, the emphasis in Section 63 illustration(c) is that the copy produced should be one which is compared with the original, and there is proof thereof that it contains that which the original contains. Whether xerox attested copy of a document comes within the meaning of Section 63(3) of the Act, 1872, is a matter required to be decided and resolved after adducing evidence, but not at the stage of threshold. Prima facie, at this stage, the first respondent/plaintiff had taken a specific plea that the original has been lost and xerox copy of the agreement is attested copy of the original, and therefore he is seeking to receive the document as secondary evidence and permit him to prove the document as secondary evidence. The trial Court rightly observed that the Court is entitled to reject any document which is irrelevant and inadmissible, at any stage of the case. Since the document sought to be received as secondary evidence is the suit document, necessary requirements that are to be followed under law, are required to be proved beyond preponderance of probability. It can be done ordinarily after adducing evidence. The trial Court, after consideration of the entire material on record, rightly allowed the petition, and it has not committed any mistake or error of law in allowing the petition.

24. The Civil Revision Petition is devoid of merit and is, accordingly, dismissed. No costs.

Revision dismissed.