Telangana High Court
Oriental Insurance Company Ltd., vs Bharat Heavy Electricals Ltd., on 21 August, 2024
THE HONOURABLE SMT JUSTICE T.MADHAVI DEVI
C.R.P.NOS. 1929 and 1932 of 2024
COMMON ORDER:
These two Civil Revision Petitions have been filed against the common and consolidated order passed in I.A.Nos.1498 and 1499 of 2023 in O.S.No.79 of 2018, dated 22.02.2024, on the file of Principal District Judge, Sangareddy District.
2. Brief facts leading to the filing of the present Civil Revision Petitions are that the petitioner herein is the defendant in the suit filed by the respondent plaintiff for recovery of a sum of Rs.5,70,82,068/-, which includes the principal amount of Rs.1,67,86,375/- and interest thereon @ 18% p.a., from the date of registration of claim i.e., 25.11.2004 till the date of filing of suit which amounted to Rs.4,02,95,693/-. The plaintiff has filed two I.As., one under Section 65-B of Indian Evidence Act and the other under Section 65-c of Indian Evidence Act r/w 151 Civil Procedure Code respectively praying the Court to admit the documents which are mentioned in the petition and the Chief affidavit and to permit to mark them as exhibits in O.S.No.79 of 2018. The petitioner/defendant has objected to the same stating that the plaintiff has not proved or stated that the subject documents have been lost forever and therefore, the 2 TMD,J CRP.Nos. 1929 & 1932 of 2024 secondary evidence cannot be admitted. However, the trial Court has allowed the petitions filed by the plaintiff and therefore, defendant has filed the present Civil Revision Petitions challenging the said orders.
3. It is submitted that in respect of the petition filed under Section 65-B of the Indian Evidence Act, the trial Court has permitted the plaintiff to mark certain documents on behalf of plaintiff under Section 65-B of Indian Evidence Act on the ground that the said documents are electronic printouts, computer outputs and the same were obtained from the computers maintained by the plaintiff company wherein the said information was stored, though the ingredients of Section 65-B of Indian Evidence Act are lacking in the said case. It is submitted that the trial Court failed to see that the documents which are sought to be marked are Xerox copies of the printouts obtained from the computer and the original documents were not produced even at the time of filing of suit. It is submitted that the trial Court has failed to see that the respondent company has not submitted the certificate under Section 65-B of Indian Evidence Act certifying that the printouts are obtained from the same computer which was used regularly to store the 3 TMD,J CRP.Nos. 1929 & 1932 of 2024 information during the relevant time by the person having lawful control over the use of such computer.
4. In respect of the petition filed under Section 65-c of Indian Evidence Act, learned counsel for the petitioner submitted that the trial Court permitted the plaintiff to mark the Xerox copies as exhibits even though the respondent did not explain as to how the original documents are lost and the reasons for marking the Xerox copies as exhibits by considering them as secondary evidence, though the ingredients of Section 65-c of Indian Evidence Act are lacking in the present case. It is submitted that the trial Court also failed to see that the contents of the affidavit filed in support of the petition merely stated that the documents could not be traced out as they were sixteen years old, but not that they were lost. Therefore, according to him, there existed no valid ground to allow the petition. It is submitted that the trial Court ought to have observed that Rule 113(7) of the Civil Rules of Practice does not permit marking of Xerox copies in the absence of originals unless the conditions mentioned in Section 65(c) are fulfilled.
5. Learned counsel for the petitioner, while reiterating the above submissions, also relied upon the following judgments:
4
TMD,J CRP.Nos. 1929 & 1932 of 2024
1. Benga Behera and Another Vs. Braja Kishore Nanda and Others 1;
2. Sital Das Vs. Sant Ram and Others 2;
3. B.Balachandra Rai Vs. Indian Telephone Industries Limited 3;
4. Rajasthan Golden Transport Company Vs. Lrs.Of Amritlal 4;
5. K.P.Krishnakumar Vs. Smt.Radhalakshmi Amma 5.
6. Learned counsel for the respondent, on the other hand, submitted that subsequent to the orders passed by the trial Court, the plaintiff has furnished the certificate under Section 65-B of Indian Evidence Act and therefore, the objection of the respondent with regard to the marking of the said documents is not sustainable.
7. In respect of the documents which are marked under Section 65-c of the Indian Evidence Act, the learned counsel submitted that in the petition filed before the trial Court, it was clearly mentioned that the documents were not traceable due to lapse of time and therefore, the ingredients of 1 AIR 2007 SC 1975 2 AIR 1954 SC 606 3 2003 (5) KARLJ 79 4 AIR 1998 RAJ 153 5 2004 (4) KARLJ 391 5 TMD,J CRP.Nos. 1929 & 1932 of 2024 Section 65-c of the Indian Evidence Act are attracted and the trial Court has correctly allowed marking of the said documents.
It is further submitted that mere marking of the documents is not equivalent to the proof of documents and the respondent can take the objection to the admission of documents at the time of examination of the parties and therefore, there was no prejudice caused to the defendant by marking of the documents. She further submitted that the documents which are sought to be filed and marked are all correspondence between the plaintiff and the defendant and therefore, defendant cannot have any objection to the marking of such documents. In support of her contentions, she also placed reliance upon the following judgments:
1. Jupudi Prakash Vs. The State of Andhra Pradesh 6;
2. Krishnapatnam Port Company Ltd Vs. Cargill India Pvt Ltd 7;
3. Jagmail Singh and Another Vs. Karamjit Singh and Others 8;
6 Crl.R.C.No.2632/2018, dt.13.12.2018 7 C.R.P.No.2399/2018, dt.13.07.2018 8 (2020) 5 SCC 178 6 TMD,J CRP.Nos. 1929 & 1932 of 2024
4. Prem Chandra Jain (Deceased) rep. by Lr's Shri Bharat Bhushan Jain, Advocate and Others Vs. Sri Ram (Deceased) rep. by Lr's Shri Sunil Kumar Arora and Others 9;
5. Narmada Estates Pvt. Ltd. Vs. State of Maharashtra and Others 10;
6. Rakesh Mohindra Vs. Anita Beri and Others 11.
8. Having regard to the rival contentions and the material on record, this Court would first like to consider the legal position and the judicial precedents on the issue for adjudication of the issue. For ready reference the provisions of Section 65(c) of the Indian Evidence Act is reproduced hereunder:
"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".
9. On a literal reading of the above provision, this Court finds that for admission of secondary evidence under Section 65-c of Indian Evidence Act, the primary condition to be satisfied is that the original documents are not available or lost. 9 2009 (113) DRJ 617 10 2017 SCC Online Bom 7499 11 (2016) 16 SCC 483 7 TMD,J CRP.Nos. 1929 & 1932 of 2024
10. Let us therefore now consider the precedents relied upon the petitioner on the issue. In the case of Benga Behera and Another (cited supra) the Hon'ble Supreme Court has observed that "where no information was lodged about the missing of the documents before any authority, the loss of the original document was not satisfactorily proved. It was held that a document, upon which a title is based, is required to be proved by primary evidence and secondary evidence may be given under Section 65(c) of Indian Evidence Act and therefore, it was obligatory on the part of the respondents to establish, on the part of the party seeking to file to establish, the loss of the original document, beyond all reasonable doubt".
11. In the case of Sital Das (cited supra), it was held that "where no foundation was laid for reception of secondary evidence under Section 65 of Indian Evidence Act, no copy produced, can be regarded as secondary evidence within the meaning of Section 63".
12. In the case of B.Balachandra Rai (cited supra), it was held that "neither are the originals nor certified copies of the same are produced and nor are the contents of the same proved as required in law and mere production of Xerox copies 8 TMD,J CRP.Nos. 1929 & 1932 of 2024 do not amount to proof of the same unless foundation is laid for adducing secondary evidence as the substantive provisions of the Indian Evidence Act are applicable to the enquiry proceedings".
13. In the case of Rajasthan Golden Transport Company (cited supra), it was held that "before according permission to produce secondary evidence, the Court is required to satisfy itself whether the document sought to be produced falls within the definition of secondary evidence as defined in Section 63 of the Indian Evidence Act and where the document in question appears to be a Photostat copy of its original assessment order, there should be some evidence that this copy was made from its original by the Photostat machine and where no such material is available on the file of the case, the same cannot be admitted as secondary evidence".
14. In the case of K.P.Krishnakumar (cited supra), it was held that "a 'true copy' of a document will not be admissible under Section 63 unless it is shown that it has been made from or compared with the original. Further, there must be sufficient proof of a search for the original to render the secondary evidence admissible and it must be established that the party 9 TMD,J CRP.Nos. 1929 & 1932 of 2024 has exhausted all resources and means in search of the document which was available to them". Therefore, the requirement of Section 65-c of the Indian Evidence Act is that the petitioner not only must aver that there has been a search for document, but also that it has been lost or is not traceable.
15. In the application filed by the petitioner under Section 65(c) of the Indian Evidence Act, it was stated that the copies which was filed were pertaining to sixteen years old and that the same were not available in the office of the plaintiff company and as such it is unable to procure the same and produce before the Court. Therefore, it is clear that the respondents have given the reason for non-production of the original documents and the only presumption that can be drawn is that the documents are not available. For the meaning of the word 'lost', the Delhi High Court in the case of Prem Chandra Jain (cited supra) relied upon by the learned counsel for the respondent, the word 'lost' was held to be synonymous with 'not traceable' or 'not available'".
16. In the other judgments relied upon by the learned counsel for the respondent it was held that the reasons given in the application that the documents are misplaced or lost at the 10 TMD,J CRP.Nos. 1929 & 1932 of 2024 time of shifting can't be said to be false and further on the existence of the documents, the opposition party can cross examine the witnesses. In the case of Rakesh Mohindra (cites supra), the Hon'ble Supreme Court has held that "mere marking or admission of secondary evidence does not amounts to its proof, the genuineness, correctness and that the existence of the documents shall have to be established during the trial.
17. In the case of Jupudi Prakash (cited supra), it was held that "under Section 65 (c) of the Indian Evidence Act, Xerox copies can be received when the original documents have been destroyed or lost subject to proof and relevancy". Therefore, this Court finds that the Courts have time and again held that the Xerox copies of the primary evidence can be accepted as secondary evidence provided the petitioner proves that the documents were not traceable and/or are lost. It was further held that even if the documents are marked, are yet to be proved during the course of trial. As pointed out in the earlier paragraphs, the petitioner had stated the reason for filing of the secondary evidence i.e., they are sixteen years old and are not available in the plaintiff company. Further, it is stated across the Bar, that these documents are the correspondence between 11 TMD,J CRP.Nos. 1929 & 1932 of 2024 the plaintiff and the defendant and therefore, they might be in possession of the defendant as well.
18. In view of the above, this Court is of the opinion that there is no prejudice caused to the petitioner in allowing the documents to be marked subject to proof and relevancy. Marking of the documents itself will not amount to admission of the documents. They are only being marked as exhibits. In view of the same, this Court does not find any merit in the Civil Revision Petition filed against the order passed in I.A.No.1498 of 2023 in O.S.No.79 of 2018, dated 22.02.2024.
19. In case of C.R.P.No.1929 of 2024, it is submitted that the certificate under Section 65-B of the Indian Evidence Act has been produced before the trial Court. Therefore, the order passed in I.A.No.1499 of 2023 needs no interference.
20. Accordingly, both the Civil Revision Petitions are dismissed. There shall be no order as to costs.
21. Miscellaneous petitions, if any, pending in this Civil Revision Petitions, shall stand closed.
____________________________ JUSTICE T.MADHAVI DEVI Date: 21.08.2024 bak