This court dismissed civil revision petitions challenging the lower court's order admitting a photocopy of a Will as secondary evidence, holding that admissibility could not be rejected at the threshold as the original was in the opposite party's possession.
Both Civil Revision Petitions were dismissed; no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
C.R.P.(MD)Nos.1044 & 1045 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 19.09.2023
CORAM:
THE HONOURABLE MR.JUSTICE C.KUMARAPPAN
C.R.P.(MD)Nos.1044 & 1045 of 2019 and C.M.P.(MD)No.5732 of 2019
C.R.P.(MD)No.1044 of 2019
Jeyarathnam ... Petitioner/ 2nd Respondent /2nd Defendant
Vs.
1.Samuel Nickson 2.Davidson Packaseelan ... Respondents 1 &2 /Petitioners/
Plaintiffs 3.Jebaveeran ... 3rd respondent / 1st respondent / 1st defendant
Prayer: This Civil Revision Petition is filed under Article 227 of the Constitution of India, against the fair and decretal order dated 03.08.2018, passed in I.A.No.328 of 2018 in O.S.No.20 of 2014, on the file of the District Munsif of Tiruchendur.
For Petitioner : Ms.P.Jessi Jeeva Priya For Respondents : Mr.M.P.Senthil for R1 & R2 : No appearance for R3
C.R.P.(MD)Nos.1044 & 1045 of 2019
C.R.P.(MD)No.1045 of 2019
Jeyarathnam ... Petitioner/ 2nd Respondent /2nd Defendant
Vs.
1.Samuel Nickson 2.Davidson Packaseelan ... Respondents 1 &2 /Petitioners/ Plaintiffs 3.Jebaveeran ... 3rd respondent / 1st respondent / 1st defendant
Prayer: This Civil Revision Petition is filed under Article 227 of the Constitution of India, against the fair and decretal order dated 03.08.2018, passed in I.A.No.329 of 2018 in O.S.No.20 of 2014, on the file of the District Munsif of Tiruchendur.
For Petitioner : Ms.P.Jessi Jeeva Priya For Respondents : Mr.M.P.Senthil for R1 & R2
COMMON ORDER
The instant Civil Revision Petitions have been filed against the order, dated 03.08.2018, passed in I.A.Nos.328 & 329 of 2018 in O.S.No.20 of 2014, on the file of the District Munsif, Tiruchendur.
C.R.P.(MD)Nos.1044 & 1045 of 2019
and the third respondent herein is the first respondent/ first defendant before the Court below.
C.R.P.(MD)No.1044 of 2019
and possession, and also for the prayer compelling the first defendant to produce the original Will, dated 30.07.1992, and for other reliefs.
C.R.P.(MD)Nos.1044 & 1045 of 2019
than the father of the plaintiff. Apart from the above prayer, in order to prove such Will, the plaintiffs have already submitted the registered copy of the Will. It is the further submission of the plaintiffs that when they have taken summons to the attestors, the said summons were returned with an endorsement that those attestors were “dead”. It is also the further submission of the plaintiffs that, they have also summoned the Sub Registrar, where the said Will was registered. However, the staffs from the Sub Registrar office deposed before the Court that they were not in practice of getting signature of the attestors.
attestors are not alive, now the signature of the attestors also needs to be proved. However, in the registration copy, no such signature of the attestors is available so also before the Sub Registrar office. The plaintiffs further submits that fortunately, they have the photocopy of the Will, which contains the signature of the attestors. Hence, to prove the signature of the attestors, through the phto copy of the Will, they prayed to mark the said document.
C.R.P.(MD)Nos.1044 & 1045 of 2019
C.R.P.(MD)Nos.1044 & 1045 of 2019
were in possession of the photocopy of the Will, even while filing the suit, the non production of the same would dis-entitle them to submit the same at the belated stage. It is also the further submission of the petitioner that, unless the foundation to produce the secondary evidence, the question of producing the photocopy will not arise. Therefore, contended that the very order passed by the Court below is liable to be interfered.
Vs. State of Andhra Pradesh and others) .
C.R.P.(MD)Nos.1044 & 1045 of 2019
production of original Will and would further submit that they have already submitted the available registration copy of the Will before the Court below. It is also the submission that they took effort to prove the Will, through attestors and that when the attestors become died, they have also taken steps to produce the signature of the attestors from the Sub Registrar office. Since the witness from the Sub Registrar Office had stated that, no signature of the attestors is available, it necessitated the plaintiffs to file the photocopy of the Will, which is available in their hand. Therefore, contended that the very order passed by the Court below is well considered one and is not required any interference.
counsel for the defendant is that unless the original Will produced, the proof of the Will can't be decided and that, the question of producing xerox copy does not arise as the secondary evidence is inadmissible.
C.R.P.(MD)Nos.1044 & 1045 of 2019
very suit has been filed for production of the original Will by the first defendant. Therefore, in such back ground of the pleadings, expecting the plaintiffs to produce the original Will is illogical.
C.R.P.(MD)Nos.1044 & 1045 of 2019
State of Gujarat and another) . Though the judgment has arisen out of the criminal case, in many Civil cases, the Hon'ble Supreme Court has followed the precedents of the above reported judgment. To cite few in AIR-2020-SC-1140 (Z.Engineers Construction Pvt. Ltd. Vs. Bipin Bihari Behera) and AIR-2020-SC-2666 (Dhanpat V. Sheo Ram (Deceased) through L.Rs), the Hon'ble Supreme Court has followed the Bipin Shantilal Panchal judgments (cited supra). Apart from that, when we speak about the evidence, the Evidence Act, it is common for both the Civil and Criminal case. Therefore, the contention that the ratio of the Bipin Shantilal Panchal's case (cited supra), will not be applicable to the civil case, is irrational and liable to be rejected.
C.R.P.(MD)Nos.1044 & 1045 of 2019
Vs. State of Andhra Pradesh and others) . In the said judgment, while explaining Section 148 of the Evidence Act, the Hon'ble Supreme Court has held as follows:-
“15. Apart from Section 148, there are other provisions of the Evidence Act (Sections 149-154) which define the ground rules for cross examination. During questioning, no doubt, the counsel for the party seeking cross examination has considerable leeway; cross examination is not confined to matters in issue, but extends to all relevant facts. However, if the court is not empowered to rule, during the proceeding, whether a line of questioning is relevant, the danger lies in irrelevant, vague and speculative answers entering the record. Further, based on the answers to what (subsequently turn out to be irrelevant, vague or otherwise impermissible questions) more questions might be asked and answered. If this process were to be repeated in case of most witnesses, the record would be cluttered with a jumble of irrelevant details, which at best can be distracting, and at worst, prejudicial to the accused. Therefore, this court is of opinion that the view in Bipin Shantilal Panchal should not be considered as binding. The presiding officer therefore, should decide objections to questions, during the course of the proceeding, or failing it at the end of the deposition of the concerned witness. This will
C.R.P.(MD)Nos.1044 & 1045 of 2019
result in de- cluttering the record, and, what is more, also have a salutary effect of preventing frivolous objections. In given cases, if the court is of the opinion that repeated objections have been taken, the remedy of costs, depending on the nature of obstruction, and the proclivity of the line of questioning, may be resorted to. Accordingly, the practice mandated in Bipin Shantilal Panchal shall stand modified in the above terms. ”
(Emphasis supplied by this Court)
learned counsel for the defendants, the ratio of the Bipin Shantilal Panchal case (cited supra) has been modified and has held that the objection to the questions has to be decided during the course of proceedings or failing it at the end of the deposition of the witness concerned. So with the above observation, the ratio of the Bipin Shantilal Panchal case has been modified.
C.R.P.(MD)Nos.1044 & 1045 of 2019
party, then the secondary evidence may be given.
supra), the Bipin Shantilal Panchal's case (cited supra) ratio has been modified. While closely reading the paragraph No.15, of The Criminal
trial guidelines cases the same dealt in respect of the objections to the questions, and there is no reference as to the documents. However, the ultimate finding of The Criminal trial guidelines case (cited supra) is to give a finding in respect of the objection either during the course of proceeding or at the end of the deposition of the concerned witness. Therefore, keeping the above aspect in mind, while considering this case, even at the worse, document must be received. However, regarding objection to the marking of the document should be adjudicated either during the course of the evidence or at the end of the deposition. Therefore, unless the document is received, there may not be any occasion to the Court to consider the objection. Therefore, even as per the above ratios, the merits of the document or admissibility of the document cannot be gone into at the threshold before receiving the same in evidence.
C.R.P.(MD)Nos.1044 & 1045 of 2019
C.R.P.(MD)No.1045 of 2019
C.R.P.(MD)Nos.1044 & 1045 of 2019
photocopy. Therefore, the order passed by the Court below permitting the document to be received in evidence subject to proof and relevancy is liable to be confirmed. Hence, C.R.P.(MD)No.1045 of 2019 is dismissed.
19.09.2023
NCC : Yes/No Index :Yes/No Ls To
1.The District Munsif, Tiruchendur.
2.The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai.
C.R.P.(MD)Nos.1044 & 1045 of 2019
C.R.P.(MD)Nos.1044 & 1045 of 2019
C.KUMARAPPAN.,J.
Ls
Order made in C.R.P(MD)Nos.1044 & 1045 of 2019
19.09.2023
2 issues framed by the court
Whether the Civil Revision Petition challenging the lower court's admission of a photocopy of a Will as secondary evidence should be allowed.
Whether the ratio of Bipin Shantilal Panchal regarding secondary evidence affects the admissibility of photocopies in civil suits where originals are in the possession of the opposite party.
Colour shows how this judgement treated each authority
Bipin Shantilal Panchal Vs State of Gujarat and anotherDistinguished¶17
2001-3-SCC-1 · Who else cites this
3 provisions across 3 enactments
Jeyarathnam
Samuel Nickson
Davidson Packaseelan
Jebaveeran
C. KUMARAPPAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
