THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY        
Civil Revision Petition No.6117 of 2009

16-06-2010

Manepalli Venkata Sreerama Murthy & another

Garlapati Lakshmana Swamy  

Counsel for the petitioners: Sri P.R. Prasad

Counsel for respondents: Sri M. Naga Raghu

:ORDER:

The respondent filed O.S.No.107 of 2008 in the Court of
VII Additional District and Sessions Judge (Fast Track Court), Vijayawada,
against the petitioners for the relief of specific performance of an agreement
of sale, dated 13-01-2007, and for a mandatory injunction for demolition of the
structures, existing on the suit schedule property.  The petitioners filed a
written-statement, denying the plaint allegations and opposing the suit.  The
trial Court framed the issues and the trial of the suit commenced.

The respondent sought to file the Photostat copy of the agreement of sale, dated
13-01-2007.  It was pleaded that the original document was handed over to an
Advocate, by name, D.P. Ramakrishna, for preparation of notice, and for drafting
the pleadings, and that in spite of repeated requests, the said advocate did not
return the original.  The petitioners raised an objection for taking the xerox
copy of the document, on record.  According to them, though there is no dispute
as to the execution of the agreement of sale, and making of certain
endorsements, there is a serious dispute as regards the fourth endorsement.
Both the parties placed reliance upon certain precedents.  The trial Court
overruled the objection raised by the petitioners, through its order dated 18-
11-2009, and accordingly paved the way for marking of the photostat copies of
the agreement of sale, and the endorsements made thereon.  The order dated 18-
11-2009 is challenged in this revision.

Sri P.R. Prasad, learned counsel for the petitioners submits that the trial
Court did not ensure compliance with the requirements under law, before the so-
called secondary evidence was taken on record.  He contends that Section 66 of
the Indian Evidence Act (for short 'the Act'), enables a party to adduce
secondary evidence, only when a party, who, in the natural course of events,
is supposed to have the custody of the document in original, refuses to furnish
the same, in spite of demand, and that an advocate engaged by a party cannot be
said to be a person, to have natural custody of the document, in relation to the
suit transaction.  He further submits that except stating that he issued the
notice to the said advocate, the respondent did not take any steps to summon
him.  Learned counsel further contends that when there is a serious dispute as
to the genuinity of the fourth endorsement, on the document, it becomes just
impossible for the Court, to verify the plea, by examining a photostat copy.

Sri M. Naga Raghu, learned counsel for the respondent,
on the other hand, submits that the petitioners do not dispute the factum of
execution of agreement of sale and the question as to whether the fourth
endorsement is genuine or not, can be decided with reference to the evidence,
which, the parties may adduce.  He contends that the trial Court referred to the
relevant precedents, that have a bearing on the question, and that no exception
can be taken to the order under revision.

The respondent prayed for specific performance of agreement of sale, dated 13-
01-2007 and ancillary reliefs, in the suit.  It is stated that subsequent to the
execution of the agreement, as many as four endorsements were made, evidencing
the receipt of part of sale consideration and altering some of the conditions.
Therefore, a perusal of the document becomes necessary for resolution of the
dispute.

It is always desirable to adjudicate the matter on the basis of the original
documents.  Where, however, it becomes impossible for a party to produce or
secure the custody, of the original document, law provides for filing a
secondary evidence.  The circumstances under which a party can adduce secondary
evidence are provided for, under Sections 63, 65 and 66 of the Act.  One such
is, where the original of the document is in the custody of a party, and in
spite of notice being issued to him, he failed to produce the same before the
Court or did not hand over the same to the other party.  Section 66 reads,
"Sec. 66:  Rules as to notice to produce.-Secondary evidence of the contents of
the documents referred to in section 65, clause(a)], shall not be given unless
the party proposing to give such secondary evidence has previously given to the
party in whose possession or power the document is or to his attorney or
pleader, such notice to produce it as is prescribed by law; and if no notice is
prescribed by law, then such notice as the Court considers reasonable under the
circumstances of the case;
Provided that such notice shall not be required in order to render secondary
evidence admissible in any of the following cases, or in any other case in which
the Court thinks fit to dispense with it:-

(1) when the document to be proved is itself a notice;
(2) when, from the nature of the case, the adverse party must know that he will
be required to produce it;
(3) when it appears or is provided that the adverse party has obtained
possession of the original by fraud or force;
(4) when the adverse party or his agent has the original in Court;
(5) when the adverse party or his agent has admitted the loss of the document;
(6) when the person in possession of the document is out of reach of, or not
subject to, the process of the Court".

From a perusal of the provision it is evident that, normally a notice to produce
the original of a document is to be issued to the "party".  However, if one
takes into account the language employed in Section 65, it is possible that
secondary evidence can be adduced even where the person, in whose custody the
original is, not a party to the suit. Section 65 (a) reads,
"Sec. 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".
(See Sarkar on Evidence)

Renowned of the Treatise on the law of i.e. "Sarkar on Evidence", has this, to
say, in the context.
 "In s.66 the person in possession of the document has been referred to as
"party" except in proviso (6) which speaks of the "person in possession";
whereas in s.65 the word "party" has not been used though it refers to documents
in the possession of parties as well as strangers [see cl.(a)].  Obviously both
sections refer to parties to suits as well as to strangers.  Ordinarily the
notice must be to the person in whose possession or power the document is. (as
to possession, see notes to cl.(a) section 65 ante]".
(See Sarkar on Evidence, Fifteenth Edition Reprint 2002
             para 2, page 1109)


In this case, the person, who is said to be in possession of the original of the
agreement of sale, is one Sri Ramakrishna, advocate, who is not a party to the
suit.

However, the mere statement by the respondent that a notice was issued to the
said advocate for production of the original, and that he did not comply with
the request, does not suffice, to enable him to adduce secondary evidence.  It
becomes essential and necessary to secure his presence, by taking the summons  
from the Court.  The reason is that, if the person, who withholds the original
of a document, is a party to the suit, an adverse inference can be drawn against
him, and he shall have to face the consequences, that flow from such inference.
His silence itself would be an acceptance of his being in possession of the
document.  However, in the case of a person, who is not a party, such inference
cannot be drawn, at all.  Many a time, it may become doubtful, as to whether the
so-called third party is in possession of the original.  If the party, who
intends to adduce secondary evidence, is relieved of the obligation to summon
such person, to prove the factum of the original being in the custody of such
person, the very rigor against the secondary evidence, contained in various
provisions, including Section 65, may get diluted.

A party, who, either, is not in possession of the original, or is of the view
that the scrutiny of the same would not be in his interest, may invent a plea,
that the original is in the possession of a person, who is not a party to the
suit, and that in spite of notice being issued to him, the original was not
delivered.  By adopting such device, he may thwart any attempt to send the
document for comparison under Section 45 of the Evidence Act.  In BHERI
NAGESWARA RAO v.  MAVURI VEERABHADRA RAO1, this Court took the view that the          
photostat copy of an original cannot be the subject-matter of verification and
scrutiny under Section 45 of the Evidence Act.  Therefore, heavy burden rested
upon the respondent to satisfy the Court, that the original is in the custody of
the person named by him to procure the presence of such person, in the Court.
The trial Court ought to have insisted upon examination of that person, to
verify the correctness of the plea as to the custody of the document, with him.

It is true that this Court in THRILOKCHAND JAIN v. GURRAPU RAJAMOULI2 held that  
in case the party or person in whose possession the original is said to be
there, has not responded to a notice, secondary evidence can be permitted.  It
has already been observed that the nature of burden as regards the issuance of
notice for production of the original, substantially differs from a case, where
such a person is a party to the suit, and the one, where he is not a party.  The
trial Court did not bestow its attention to this aspect.

For the foregoing reasons, the revision is allowed, and the order under revision
is set aside.  The trial Court is directed to consider the matter afresh.  It is
made clear that the petitioners shall be under obligation to take summons to the
person in whose possession the original of the document is said to be; and the
trial Court shall form an opinion as to the admissibility of the secondary
evidence, depending upon the nature of evidence, which the person, who is said
to be in the custody of the document may give.

There shall be no order as to costs.

?1 2006 (4) ALT  694
2 2004 (4) ALT 605