THE HON'BLE SRI JUSTICE B. VIJAYSEN REDDY
CIVIL REVISION PETITION No.449 of 2017
ORDER:
Heard the learned counsel for the petitioner. There is no representation on behalf the respondents either in person or through counsel. The record shows service of notice of the respondent Nos.1, 2 and 5. The respondent Nos.3 and 4 are represented by their mother, respondent No.1, who is served.
2. This revision is filed challenging the docket order dated 05.12.2016 in O.S.No.736 of 2013 passed by the Principal Senior Civil Judge, Ranga Reddy District, whereunder the Court below refused to receive in evidence the attested certified copy of Memorandum of Oral Settlement dated 18.12.1993 marked as Ex.B34 in LGC.No.6 of 2004.
3. The petitioner/plaintiff filed a suit in O.S.No.736 of 2013 for declaration and permanent injunction. During the trial, the GPA of the petitioner/plaintiff was examined as P.W.1 and Exs.A1 to A22 were marked. The counsel for the defendant raised objection with regard to marking of attested copy of memorandum of oral settlement dated 18.12.1993 stating that the document is the certified copy obtained from LGC.No.6 of 2004 and the said document was declared as invalid document in the said LGC. Hence, the document cannot be looked into.
4. The Court below pointed out that the document is an unregistered document and the same was not considered in LGC.No.6 of 2004. At page No.16 of the order of the Land Grabbing Court in LGC.No.6 of 2004, a finding was given that, "this particular document
- Memorandum of settlement dt:18-12-1993 was marked as Ex.B34 in LGC.No.6/2004 and a clear finding that the Ex.B34 is a true copy of a 2 copy, it cannot be considered and it do not contain stamp and seal or signatures of any officials of MRO, Serilingampally and there is a finding that Ex.B34 is a fabricated document". The Court below further pointed out that a writ petition was filed seeking a direction to the Special Court to mark the document and to establish the relevancy and proof of the document in accordance with law. It was discussed in the writ order that mere marking of the document which is a certified copy issued by Public authority would not amount to giving approval of its genuineness, relevancy; marking of document would not cause prejudice to the respondent and it does not amount to proving the document. After the order was passed in WP.No.2032 of 2009, the Land Grabbing Court marked the document as Ex.B34 in LGC.No.6 of 2004. However, a finding was given by the Land Grabbing Court that Ex.B34 is a fabricated document. Further, finding was given by the Court below, under the impugned order, that the document relates to creating right of the party in the immovable property and it requires registration. The document is a certified copy of the copy of the document and it cannot be received as an evidence and the document is inadmissible in evidence.
5. Learned counsel for the petitioner submitted that the judgment of the Land Grabbing Court in LGC.No.6 of 2004 is challenged in WP.No.10434 of 2013 before this Court, which is pending.
6. Admittedly, the document, which is styled as Memorandum of Oral Settlement was marked as Ex.B34 in LGC.No.6 of 2004. It is not in dispute that the Land Grabbing Court held that there the oral agreement, Ex.B34, is a fabricated document. This Court is of the opinion that a finding or decision given by the Land Grabbing Court that Ex.B34 (memorandum of oral settlement) is a fabricated 3 document, cannot be a ground for the Court below for refusing to receive the document. It is settled law that mere marking of document does not dispense with its proof. Whether document is genuine or not is a matter to be decided in the main suit.
7. At the time of receiving the document, the Court has limited jurisdiction. The Court is required to see whether the document is primary evidence or secondary evidence. If the document is secondary evidence (as in the instant case), being certified copy or copy of the certified copy (in LGC.No.6 of 2004), the Court may refuse to receive the document unless the procedure contemplated under Section 65 of the Indian Evidence Act is complied with. But without resorting to such legal procedure, the Court below chose to reject the document as inadmissible in evidence at the threshold. The objection taken by the Court below having regard to the finding given in LGC.No.6 of 2004 that the document is fabricated, is unsustainable. That is the matter to be considered on merits at the time of hearing the main suit independently by giving cogent reasons taking into consideration pendency of WP.No.10434 of 2013 filed challenging the judgment in LGC.No.6 of 2004. The further objection that the document requires registration is also unsustainable as no reasons, whatsoever, have been recorded before coming to such conclusion. It is made clear that the Court below shall examine the contents of the document and pass speaking order giving clear reasons as to whether the document requires registration or not.
8. For the reasons recorded above, the order of the Court below is unsustainable and liable to be set aside. The Court below is directed to receive the document, styled as Memorandum of Oral Settlement (marked as Ex.B34 in LGC.No.6 of 2004). However the document, 4 being secondary evidence, shall not be taken on record until necessary application is filed by the petitioner under Section 65 of the Indian Evidence Act for receiving the secondary evidence. Upon such application being filed, the Court below shall pass appropriate orders in accordance with law and also decide the issue whether the document is compulsorily registrable or not as stated supra.
In view of the above observations, the civil revision petition is allowed. Pending miscellaneous petitions, if any, shall stand closed. There shall be no order as to costs.
__________________ B. VIJAYSEN REDDY, J July 15, 2021 DSK