Dr. C. Siva Ranadheer Raju, vs K Presannalakshmi Alias Lakshmi ...
2022 Latest Caselaw 9293 AP

        HONOURABLE SRI JUSTICE SUBBA REDDY SATTI

           CIVIL REVISION PETITION No.1507 of 2022

   Between:

   Dr.C.Siva     Ranadheer       Raju,     S/o
   C.Ramachandra     Raju,    D.No.19-7-103/A,
   Gopalraju Colony, R.C. Road, Tirupati Town
   and Urban Mandal, Chittoor District.

                                                  ... Petitioner.
               Versus

   K.Prasannalakshmi       alias      Lakshmi
   Prathyusha, D/o K.Bhaskar Raju, Hindu, aged
   about 31 years, near Mahila University,
   Tirupati Town and Urban Mandal, Chittoor
   District.

                                                ... Respondent.


Counsel for the petitioner           : Sri A.Kishore Kumar
Counsel for respondent               : Sri Rosedar SRA

                             ORDER

Petitioner in HMOP filed the above revision against the

order dated 07.03.2022 in I.A.No.408 of 2021 in HMOP

No.140 of 2017 on the file of Principal Senior Civil Judge,

Tirupati.

2. Petitioner filed HMOP No.140 of 2017 under Section 12

(1) (b) r/w Section 5 (ii) of the Hindu Marriage Act to annul

the marriage of petitioner with respondent dated 26.03.2016

etc.

3. The main ground, on which, the petitioner is seeking

annulment of marriage is that respondent is suffering from

mental disorder and the same was suppressed. Apart from

other contentions, petitioner specifically contended that

mental condition of respondent was deteriorating day by day;

that respondent became maniac and she told to petitioner

that he is suffering from psychiatric problem; that petitioner

took the respondent to Dr.Rohan, psychiatrist in Yenepoya

Medical College and the doctor advised the respondent for

admission into hospital for treatment; that respondent was

admitted into hospital as inpatient in psychiatrist

department; that on 14.10.2017 morning, respondent

without intimation to petitioner and hospital staff, absconded

from the hospital for some hours; that petitioner explained

the situation to father of respondent, who is at hospital and

on the same day father of respondent, got the respondent

discharged from the hospital and took her to Tirupati; that at

the time of admitting the respondent in the hospital, the

hospital authorities have collected all the prescriptions of the

respondent from the year 2007 onwards for diagnosing the

actual mental condition of respondent; that after thorough

counseling and studying the mental condition of respondent,

the hospital authorities diagnosed that respondent is

suffering from borderline personality disorder.

4. Petitioner filed copies of bunch of prescriptions issued

by Dr.T.P. Sudhakar, certificate issued by Dr. T.P. Sudhakar,

S.V. Medical College dated 24.05.2008, therapy and

counseling report of S.Bhaskar Naidu dated 12.03.2007 and

final diagnosis report issued by Yenepoya Medical College

Hospital dated 14.10.2017 as listed documents at Sl.Nos.4 to

7 along with OP.

5. When the HMOP is coming for trial, petitioner issued

notice under Order XI Rule 16 of CPC to respondent to

produce the documents viz., Prescriptions of Dr.T.P.

Sudhakar given on different dates; Outpatient ticket of

SVRRGG Hospital dated 02.02.2018; Therapy and counseling

report issued by Dr.S.Bhaskar Naidu dated 12.03.2007 and

Certificate issued by Dr. T.P.Sudhakar dated 24.05.2008 at

SV Medical College, Tirupati.

6. Respondent filed objections stating that there are no

such prescriptions, reports or certificates issued by said

doctors and hence, the respondent is unable to produce the

same. It was contended that petitioner being doctor might

have created those documents in order to take advantage of

the same.

7. By order dated 08.11.2021 the Court below closed the

said notice.

8. Petitioner filed I.A.No.408 of 2021 under Section 65 of

the Indian Evidence Act and Section 151 of CPC seeking to

mark Photostat copies of several documents as exhibits on

behalf of petitioner as secondary evidence.

9. In the affidavit filed in support of the petition, petitioner

while reiterating the contentions in main HMOP, contended

that petitioner filed Xerox copies of prescriptions, medical

certificates and reports along with HMOP, however, the

original are in the custody of respondent and thus, prayed to

mark Photostat copies of prescriptions of Dr.T.P. Sudhakar,

Psychiatrist; Outpatient ticket of SVRRGG Hospital dated

02.02.2018; Therapy and counseling report issued by

Dr.S.Bhaskar Naidu dated 12.03.2007 and Certificate issued

by Dr. T.P.Sudhakar dated 24.05.2008 at SV Medical College,

Tirupati as exhibits.

10. Respondent filed counter and opposed the application.

11. By order dated 07.03.2022, the Court below dismissed

the application. Aggrieved by the same, the present revision

is filed.

12. Heard A.Kishore Kumar, learned counsel for the

petitioner and Sri Rosedar SRA, learned counsel for

respondent.

13. Learned counsel for the petitioner would submit that

petitioner, in fact, pleaded in HMOP itself regarding his

getting Xerox copies of prescriptions and other documents

when the respondent was admitted in Yenepoya Medical

College Hospital. He would also submit that when notice was

served on respondent to cause production of original

prescriptions, respondent filed objections that there were no

such prescriptions and the same was closed. He would

submit that the Court below ought to have received the

documents and consider as to the admissibility during the

course of arguments and thus, prayed to set aside the

impugned order.

14. Learned counsel for respondent supported the order of

the Court below.

15. Whether the court below failed to exercise the

jurisdiction vested with it warranting interference under

Article 227 of the Constitution of India?

16. Trial Court recorded finding that petitioner failed to

show positive facts as to the existence, or contents of those

documents regarding alleged mental disorder of the

respondent. Petitioner also failed to show any positive facts

whether the original of such medical reports, medical

certificates and medical prescriptions have been destroyed or

lost nor did explain the said documents are in whose

possession. Xerox copies of prescriptions are not primary

evidence, but secondary evidence.

17. Section 65 of the Indian Evidence Act, 1872 reads thus:

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 in1[India] to be given in evidence2;

(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.

18. Section 66 of the Indian Evidence Act, 1872 reads thus:

Section 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,1[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 proved 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.

19. In the case on hand, as can be seen from the record,

notice was given to respondent's counsel to produce original

documents. To the said notice, objections were filed stating

that there are no such documents and totally denied the

contents in the notice. Taking into consideration those

objections, the Court below closed the notice. In such

circumstances, the revision petitioner filed I.A.No.408 of 2021

to mark the Xerox copies of prescriptions and other

documents referred supra.

20. Section 63 of the Indian Evidence Act, 1872 deals with

secondary evidence, which reads thus:

Section 63 - Secondary evidence - Secondary evidence means and includes-

(1) Certified copies given under the provisions hereinafter contained;

(2) Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;

(3) Copies made from or compared with the original;

(4) Counterparts of documents as against the parties who did not execute them;

(5) Oral accounts of the contents of a document given by some person who has himself seen it.

21. A plain reading of Section 65 (a) of the Act would

indicate that 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.

Further, it is specified that in cases (a), (c) and (d), any

secondary evidence of the contents of the document is

admissible.

22. In Bibi Aisha and Ors. Vs. The Bihar Subai Sunni

Majlis Avaqaf and Ors.1, the Hon'ble Apex Court held thus:

3. The Trial Court and in the High Court Misra J. accepted the testimony of Mehdi Hasan and held that the copy of the original waqfnama was admissible in evidence. We agree with this finding. Tarkeshwamath J. ruled that the copy was not admissible mainly on the ground that paragraph 7 of the plaint stated that the deed of waqf was in the plaintiffs custody. We agree with Misra T. that the averment in the plaint should be regarded as a general statement referring to the true copy which was left in the plaintiffs office. Under Section 65(a) of the Evidence Act secondary evidence may be given of the existence, or contents of a document 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, and when after the notice mentioned in Section 66, such person does not produce it. Where the case falls under Section 65(a) any secondary evidence of the contents of the document is admissible. In the present case the conditions or Section 65(a) were satisfied. The plain copy of the waqf was therefore admissible. On behalf of the appellant it was argued that Cl. (f) of Section 65 was applicable and that as the certified copy of the deed dated August 20, 1827

AIR 1969 SC 253

was permitted by the Evidence Act to be given in evidence a certified copy alone was admissible in evidence. There is no substance in this contention. If the case falls under clause (a) any secondary evidence of the document is admissible, though the case may also fall under clause (f). Clause (a) is not controlled by clause (f). In the case of A Collision Between The Ava, ILR (1879) 5 Cal 568 a question arose as to whether secondary evidence could be given of the contents of a certificate granted by the Board of Trade. The loss of the document attracted Cl. (c) of Section 65 and the failure to produce it after notice attracted Cl. (a)- Clause (f) of Section 65 was also applicable. Wilson J. ruled that a certified copy need not be produced and any secondary evidence was admissible. We agree with this decision. Wilson J. said:

"By Section 65 in cases under Cls. (a) and (c) any secondary evidence is admissible; in cases under Cls. (e) and (f) only a certified copy. The present case falls under Cl. (a) or (c) and also under (f). In such a case which rule applies? I think the words, "In cases (a), (c) and (d) any secondary evidence is admissible," are too clear and too strong to be controlled by anything that follows, and that, therefore, in this case any secondary evidence might be received."

23. In Amangenti Prameela and Ors. Vs. P. Venkat

Reddy and Ors.2, the composite High Court of Andhra

Pradesh held thus:

"8. Section 63(2) of the Act recognizes copies made from original by mechanical process, which ensures the accuracy of the copy as one of the categories of secondary evidence. The Trial Court did not express any doubt as to the authenticity of the xerox copy of the document placed by the petitioners, since it was the reproduction through a mechanical process. Further, the petitioners have already called upon D.W.I to produce the original and there was no response to it. Thereby a circumstance, provided for under Section 65(a) of the Act emerges, enabling the Court to receive the secondary evidence."

2004 (3) ALT 218

24. A perusal of the order of the Court below would indicate

that the respondent is disputing the existence of original

documents and also custody of documents. Hence, in view of

expressions in various judgments referred supra, it is clear

that the photostat copy obtained by the process of photostat

machine is a copy of the documents by mechanical process

and the photostat machine ensures creation of true and

correct copy. Therefore, the document sought to be produced

can be presumed to be true and correct copy of the original

document under Sub-section (2) of Section 63 of the Evidence

Act. Undoubtedly, the respondent specifically denied the very

existence of the original document, much less the custody of

such document. This Court is of the considered opinion that

these aspects may have to be gone into at appropriate stage.

There may be cases where the opposite party may deny the

very existence of the document or custody of the original for

extraneous reasons and with an ulterior motive. In every

such case, necessarily the Court cannot come to the

conclusion that such secondary evidence is not genuine and

not bona fide. It would be just and proper to go into these

aspects at the appropriate stage.

25. In view of the above discussion and a careful

consideration facts and circumstances, this Court is of the

considered opinion that the Court below failed to exercise

jurisdiction vested with it. The order under revision is liable

to be set aside.

26. Accordingly, the Civil Revision Petition is allowed and

the order dated 07.03.2022 in I.A.No.408 of 2021 in HMOP

No.140 of 2017 on the file of Principal Senior Civil Judge,

Tirupati is set aside. I.A.No. 408 of 2021 stands allowed. The

Court below shall receive the documents in question by way

of secondary evidence. The Court below shall consider the

validity and relevancy and other relevant aspects at

appropriate stage while deciding the suit. No order as to

costs.

As a sequel, all the pending miscellaneous applications

shall stand closed.

_________________________ SUBBA REDDY SATTI, J

5th December, 2022

PVD