BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 25/07/2006 CORAM: THE HONOURABLE MR.JUSTICE P.SATHASIVAM CRP PD (MD) No.214 of 2005 Arulmigu Dhandayuthapani Swamy Thirukkoil Devasthanam, through its Joint Commissioner/Executive Officer, Palani, Dindigul District. ... Petitioner 1st Defendant vs. 1.Sthanika Miras 64 Pandarams Sangam, through its secretary, Palani, Dindigul. 2.R.Ganesan ... Respondents Plaintiff 1 and 3 Civil Revision under Article 227 of the Constitution of India against the fair and Ex.order passed in I.A.No.419/2004 in O.S.No.95/1996, dated 11.01.2005, on the file of Subordinate Judge, Palani. !For Petitioner ... Mr.S.S.Ramasubramanian ^For Respondents ... Mr.R.Nandakumar :ORDER
The above civil revision under Article 227 of the Constitution of
India is directed against the order of the learned Subordinate Judge, Palani,
passed in I.A.No.419/2004 in O.S.No.95/1996, dated 11.01.2005.
2.The first defendant in the suit, namely Arulmigu Dhandayuthapani
Thirukoil, Palani, filed I.A.No.419/2004 under Section 63 of the Evidence Act
read with Section 151 C.P.C. for reception of xerox copy of a certified copy of
the order of this Court, as secondary evidence. The learned Subordinate Judge,
after finding that the document sought to be marked is a public document in
terms of Section 65(e) of the Evidence Act and xerox copy of the same is not
permissible, dismissed the said application. Hence the present revision.
3.Heard the learned counsel for the petitioner as well as the
respondents.
4.It is not in dispute that the xerox copy sought be marked is the
order dated 16.05.2000 passed by this court in W.P.No.7741/2000 on the file of
this Court (Principal Bench, Madras). No doubt it is a xerox copy of the
certified copy. Section 65 of the Indian Evidence Act speaks about Secondary
Evidence and enumerate the cases, referred (a) to (g), where secondary evidence
is permissible. While considering the above provision, the learned
Subordiante Judge, on verifying the document i.e. order of the High Court, came
to the conclusion that it is a public document and sub-clause (e) alone is
applicable.
5.Learned counsel appearing for the petitioner, by drawing my
attention to the relevant provision, namely the various categories mentioned in
Section 65 of the Evidence Act, submitted that considering the nature of the
document sought to be marked, sub-clause (a) alone is applicable and the same
can be considered as secondary evidence and according to him, sub-clause (e) is
not applicable to the case on hand. In order to understand, it is useful to
refer both the sub-sections.
“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 the possession or power-
–
of the person against whom the document is sought to be proved, or
of any 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)….
(c)…
(d)…
(e)When the original is a public document within the meaning of section
74; ……”
6.The learned counsel for the petitioner also relied on the decision
of the Supreme Court reported in AIR 1969 SC 253 (Bibi Aisha v. Bihar
S.S.M.Avaqaf) and a judgment of a learned Judge of this Court reported in 2001
(3) CTC 34 (Rajathi vs. Arukkani Ammal). In the Supreme Court decision cited
Supra, their Lordships have held that when case falls under clause (a), any
secondary evidence (a plain copy of the document) and not necessarily certified
copy of document is admissible, though the case may also fall under clause (f).
7.In the decision in 2001(3) CTC 34 cited supra, F.M.IBRAHIM
KALIFULLA,J had an occasion to consider a similar question. In the case before
the learned Judge, the document sought to be marked as a secondary evidence was
photocopy of a partition deed. After referring Section 65(a) of the Evidence
Act, the learned Judge has observed that statute does not say that for the
purpose of invoking Section 65(a) of the Act, one should assert that the
document in question is, in the possession of the party concerned but it is
sufficient, if the petitioner is able to demonstrate that the said document is
appeared to have been possessed or by the concerned person. After verifying the
factual details and after satisfying that sub-clause (a) of Section 65 is fully
satisfied in the case, the learned Judge concluded that the rejection of the
very document at the threshold is totally unjustified and not in accordance with
law.
8.On going through the factual details in our case and the relevant
provision of the statute, namely sub-clause (a) of Section 65 of the
Evidence Act, I am in agreement with the conclusion arrived by the learned
Judge. The court below unfortunately failed to adhere to the above principle to
consider whether the said document could be received as secondary evidence under
Section 65(a) of the Evidence Act. As rightly pointed out, the mere receipt of
document subject proof, would not, in any way, cause prejudice to the
respondents.
9.In the result, the revision petition is allowed and the order
impugned in the civil revision petition is set aside. The learned Subordinate
Judge, Palani, is directed receive the document in question, subject to proof by
the petitioner in the manner known to law. No costs. Connected CMP(MD)No.2088
of 2005 is closed.
gb.
To:
The Subordinate Judge,
Palani.