Leave petitioners application for secondary evidence via certified copies, noting originals are in a stayed suit.
Writ petition allowed; Impugned order of Special Court set aside; I.A.No.854 of 2012 allowed; No order as to costs.
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THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR
W.P.No.3111 OF 2013
JUDGMENT: (per the Hon’ble Sri Justice N.V.Ramana)
Petitioner, who is respondent No.1 in L.G.C.No.88 of 2003 before the Special Court under A.P.Land Grabbing (Prohibition) Act, 1982 filed two applications i.e. I.A.Nos.853 of 2012 and 854 of 2012 before the Special Court for receiving certified copies of documents and to lead secondary evidence respectively. The Special Court allowed the I.A.No.853 of 2012 and received the documents produced by the petitioner. The other application I.A.No.854 of 2012 was however dismissed under the impugned Order holding that production of original documents is essential, as such permission cannot be granted for leading secondary evidence. The said Order is questioned in the present writ petition.
Heard the learned counsel for the petitioner and the learned counsel for respondent Nos.1 and 2, who had filed the aforesaid Land Grabbing Case.
Affidavit filed in support of the I.A.No.854 of 2012 states that O.S.No.12 of 2004 is already filed by the respondent No.2 against the respondent No.1, in which documents listed in the affidavit are already filed. The said suit is said to be pending before the Court of V Additional District Judge, Ranga Reddy District and presently the proceedings therein are stayed by Order of this Court in C.R.P.No.5588 of 2010. The petitioner, therefore, states that he is not in a position to obtain return of documents,
which are produced in the said suit and therefore, he has applied for certified copies of the said documents for producing in the present Land Grabbing Case and sought leave to lead secondary evidence.
It is not in dispute that the subject matter of property involved in the said O.S.No.12 of 2004 and the present Land Grabbing Case is one and the same and both the matters are pending between substantially the same parties. The statement of the petitioner that he has filed the originals of all the documents in the aforesaid O.S.No.12 of 2004 is not disputed by the respondents. Learned counsel for the respondents, however, disputed the genuineness of the documents and also raised contention that the said documents, particularly agreement of sale is inadmissible in evidence for want of registration. The Special Court under the impugned order held that the genuineness of the documents having been disputed apart from the defect of registration, the certified copies would not serve the purpose and that unless the petitioner files the original documents, the permission to lead secondary evidence cannot be granted.
It is evident from the record that all the original documents are in the said O.S.No.12 of 2004 and unless the petitioner is allowed to take back the said originals and present the same before the Special Court the petitioner would be shutout from leading the evidence before the Special Court. Admittedly, the proceedings in the said suit are stayed and as such the petitioner is not in a position to obtain return of the originals. Petitioner, therefore, has filed certified copies on the ground that he is disabled from producing primary documentary evidence. Section 65 of the Evidence Act, under which a party can lead secondary
evidence states as follows:
“Section 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) When the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) 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 reasonable time;
(d) When the original is of such a nature as not to be easily movable;
(e) When the original is a public document within the meaning of Section 74;
(f) When the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence;
(g) When the original consists of numerous accounts or other documents which cannot conveniently be examined in Court and the fact to be proved is the general result of the whole collection.
In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible.
In case (b), the written admission is admissible.
In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.
In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.”
It will be noticed there from that though the present case is not one where original documents are lost, but is case where the
original documents are out of reach of the petitioner as at present. We, therefore, see no impediment in permitting the petitioner to lead secondary evidence on the basis of the certified copies of the very same documents already received by the Special Court. The certified copies of the documents can always be received and allowed to be marked subject to proof and relevancy, burden in that regard being clearly on the petitioner. We see no reason for declining the prayer of the petitioner for leading secondary evidence in the present facts and circumstances of the case. The order impugned, therefore, cannot be sustained, accordingly set aside.
The writ petition is allowed. Consequently I.A.No.854 of 2012 in LGC No.88 of 2003 filed by the petitioner before the Special Court under A.P.Land Grabbing (Prohibition) Act, 1982 shall stand allowed. Miscellaneous petitions, if any, filed in the writ petition shall stand closed. There shall be no order as to costs.
______________________ JUSTICE N.V.RAMANA
_________________________________ JUSTICE VILAS V.AFZULPURKAR Dated: 11-07-2013 Ksp
2 issues framed by the court
Whether a petitioner disabled from producing original documents due to them being lodged in a stayed civil suit can lead secondary evidence via certified copies under Section 65 of the Evidence Act.
Whether the Special Court's refusal to allow secondary evidence was sustainable when the originals were out of the petitioner's reach due to a stay order.
1 provisions across 1 enactments
Petitioner
Respondent Nos. 1 and 2
N.V.Ramana
Vilas V.Afzulpurkar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
