ORDER
1. The plaintiff in O.S. No. 191 of 1997 on the file of Principle Subordinate Judge, Cuddalore is the petitioner in the above revision. She has filed the said suit for declaration of her title and injunction in respect of suit properties and in the alternative partition and separate possession of her share.
2. The second defendant has filed a written statement disputing various averments made by the plaintiff. In the trial, during the examination of P.W.6
on the side of the plaintiff, the plaintiff wanted to mark xerox copy of partition list dated 14.07.1992. The said action was objected by the counsel for the defendants stating that marking of the same xerox copy which was objected when P.W.1 was examined and the said objection was sustained. Now again marking of the same document cannot be allowed and the xerox copy is not admissible. Accepting the objection raised by the defendants, the learned Principle Subordinate Judge, after holding that xerox copy cannot be marked and the claim of the plaintiff marking xerox copy of the document has been rejected, against which the plaintiff has filed the present revision.
3. Pursuant to the “Notice of Motion” ordered by this Court on 20.12.2000, the respondents are represented by counsel.
4. Heard the learned counsels for petitioner as well as respondents.
5. Mr. S.K. Raghunathan, learned counsel appearing for the petitioner, after taking me though the claim made in the plaint in O.S.No. 191 of 1997, the list of documents filed along with the plaint as well as the defence taken by the second defendant in the written statement, xerox copy of partition list dated 14.07.1992 and in view of Section 65(a) and 66 of the Indian Evidence Act, the partition list dated 14.07.1992 can be marked through P.W. 6 – one of the attestors of the documents, as a secondary evidence and the contrary view taken by the learned Subordinate Judge is liable to be set aside.
6. On the other hand, Mr. Venkateswaran, learned counsel appearing for the respondents would contend that, in view of the specific defence taken by the second defendant in the written statement as well as reply notice to the plaintiff counsel informing that, there was no partition as alleged in the plaint and the learned Subordinate Judge is perfectly right in refusing to mark xerox copy of the alleged partition list dated 14.07.1992 as document, when the same was sought to be marked through P.W. 6.
7. I have carefully considered the rival submissions.
8. In the suit for partition, namely in O.S.No.191 of 1997, the petitioner herein who is the plaintiff in the said suit has specifically pleaded that, plaint “B” schedule properties were the properties allotted to the deceased Dakshinamoorthy, which is evident from subsequent partition list dated 14.07.1992 and further stated that, since the original partition list is with defendants 2 and 3, the plaintiff is having only a xerox copy of the same furnished by them. After saying so, filed xerox copy of the partition list dated 14.7.1992 along with the plaint. No doubt, in the written statement filed by the second defendant, particularly in para 5 he denied the allegation that the defendants 2 and 3 are in custody of original partition list. It is also stated that the alleged partition did not take place on 14.7.1992. Pending disposal of the suit before the Sub Court, Cudallore, by letter dated 22.03.1999, counsel for plaintiff has directed the third defendant for production of original partition list dated 14.07.1992. For this, by reply dated 12.04.1999, learned counsel for
defendants informed that, no partition had taken place as alleged in the plaint, accordingly they cannot produce any document, which does not exist. When the plaintiff herself was examined as P.W.1, the xerox copy of partition list dated 14.07.1992 was sought to be marked through her. Since the same was objected, the plaintiff did not mark the same. However, while examining P.W.6 – K. Babu, one of the attestors of the partition list dated 14.07.1992, the plaintiff sought to mark the said document through him. As stated earlier, on the basis of the objection raised by the learned counsel for defendants, the learned Subordinate Judge refused to mark xerox copy of the said document. Now, it is clear that the plaintiff asserts that there was a partition on 14.07.1992 and the original was entrusted with Ragothama Naidu – third defendant in the suit and the xerox copy was furnished to Dhakshinamurthy -husband of the plaintiff. Since P.W.1 is not a party to the said partition list, at the first instance the learned Subordinate Judge is right in refusing to mark the partition list through P.W.1. On the other hand, the xerox copy of the partition list can be marked through P.W.6, as a secondary evidence for the following reasons.
9. I have referred to the stand taken by both parties with regard to partition list. Even for the notice for production of the said documents, counsel for defendants sent a reply stating that since there was no partition at all as alleged, production of the said document does not arise. It is clear that the plaintiff has not only averred the existence of partition list dated 14.07.1992, but also produced xerox copy of the same along with the plaint. P.W.6 in his evidence after explaining the execution of the partition deed has finally stated that,
I have also perused the xerox copy of the partition list dated 14.07.1992, which is annexed in the typed set of papers and it shows that P.W.6 is one of the attestors of the said document.
10. As per Section 62 of the Indian Evidence Act, primary evidence means, the document itself produced for inspection of the Court.
Section 63 speaks about secondary evidence.
“63. Secondary evidence. – – Secondary evidence means and includes-
(1) certified copies given under the provisions hereinafter contained;
(2) copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;
(3) copies made from or compared with the original;
(4) counterparts of documents as against the parties who did not execute them;
(5) oral accounts of the contents of a document given by some person who has himself seen it.”
Normally documents must be proved by primary evidence, except in the cases mentioned in Section 63. The other relevant provision is Section 65.
“65, Cases in which secondary evidence relating to documents may be given. – Secondary evidence may be given of the existence, condition or contents of a document in the following cases:
(a) When the original is shown or appears to be in possession or power -of the person against whom the document is sought to be proved, or of the person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it,
and when, after the notice mentioned in Section 66, such person does not produce it.
(b) When the existence, condition or contents of the original have been proved to be admitted in writing by the persons against whom it is proved or by his representative in interest.
(c) …..
(d) …..
(e) …..
(f) …..
(g) …..
It is clear that in cases of (a) (c) and (d), the secondary evidence of contents of the document is admissible.
11. Considering the assertion made in the plaint, notice to produce the original partition list, evidence of P.W.6 one of the attestors and the contents of the said document, I am of the view that the petitioner is entitled to mark xerox copy of the said partition list dated 14.7.1992, through P.W.6 as a secondary evidence. In this regard, the learned counsel for the petitioner has relied on decision of the Orissa High Court in the case of Chandra Sekar v. Ahalya Devi, , wherein in an identical circumstance, learned single Judge of the Orissa High Court, after considering similar stand taken by the defendants therein and after taking note of Section 65(a) and 66 of the Indian Evidence Act, came to the conclusion that the copy of the document sought to be marked cannot be said to be inadmissible evidence due to absence of primary evidence. As in our case, in the Orissa case also in the plaint Ex. 1 was referred to and defendants 1 and 2 denied existence of such a document. After stating that the plaintiffs clearly made a reference to Ex. 1 in the plaint, defendants 1 and 2 denied the existence of such a document. The question of calling for documents from them does not arise and held that Exhibit 1 cannot, therefore, be said to be inadmissible in evidence due to the absence of primary evidence. The said conclusion supports the case of the petitioner herein. In the light of Section 63, 65(a) and 66 of the Indian Evidence Act and in view of the plea made in the plaint, assertion by P.W.6 in his evidence regarding the fact that the original of the partition list was entrusted to third defendant and copy alone was given to the husband of the plaintiff, the xerox copy of the partition list can be marked through P.W.6 as a secondary evidence. The lower Court had erred in not marking the said document as secondary evidence, as being inadmissible in evidence. The learned Subordinate Judge committed a serious error in passing the impugned order, rejecting the request of the petitioner herein. Whether the partition list is a genuine or not is a different matter, but the same is admissible in evidence. The learned Subordinate Judge would examine and decide the genuineness of the same on the basis of the evidence let in by both parties. I am satisfied that the petitioner has made out grounds for introducing secondary evidence, namely xerox copy of the partition list. The court below ought not to have rejected the permission to the petitioner to mark the xerox copy of the said partition list as an exhibit on the side of the petitioner.
12. In the light of what is stated above, the impugned order of the learned Subordinate Judge dated 11.7.2000 made in O.S.No. 191 of 1997 is set aside and the learned Judge is directed to mark the xerox copy of the partition list dated 14.7.1992 through P.W.6 as a secondary evidence and to proceed with the trial.
13. Net result, the civil revision petition is allowed. No costs. Consequently, connected CMP, is closed.