Mohammad Irfan Sharief vs Mohammad Hussain Sharief
2023 Latest Caselaw 2670 AP

  HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO

      CIVIL REVISION PETITION No.970 of 2023

ORDER:

The petitioner is the plaintiff in O.S.No.28 of 2017

before the Family Court cum VII Additional District Judge,

West Godavari District. The petitioner is relying upon a

Family Arrangement-cum-Hibba dated 31.12.2012 to

demonstrate his right in the suit. The petitioner had moved

I.A.No.1226 of 2022 under Order 12 Rule 8 of Civil Procedure

Code for a direction to the 1st defendant in the suit to

produce the original of the Family Arrangement-cum-Hibba.

This application was dismissed on 15.12.2022 holding that

no evidence had been produced by the petitioner to show the

existence and custody of the alleged document.

2. The petitioner had thereafter moved I.A.No.1506

of 2022 under Section 65 of Indian Evidence Act,1872, to be

permitted to produce secondary evidence by producing Xerox

copy of the said Family Arrangement-cum-Hibba dated

31.12.2012. This application has also been dismissed on

03.03.2023. Aggrieved by the said order the petitioner has

approached this Court.

3. Sri G.V.Anand Kumar, learned counsel for the

petitioner would rely upon the judgment of the erstwhile High

Court of Judicature at Hyderabad for the State of Telangana

and Andhra Pradesh reported as Ramakrishna

constructions, Karimnagar & Anr v/s Singarenu Collieries

Co.Ltd., Warangal1. He would submit that, the Trial Judge

ought to have appreciated that permission being granted to

produce the Xerox copy would not amount to marking of the

said document and the same would have to be considered

only at the stage of adducing evidence and marking of the

said document.

4. The Trial Court, in the order dated 15.12.2022 in

I.A.No.1226 of 2022 had held that, the petitioner had not

been able to prove the existence or the custody of the alleged

Agreement-cum-Hibba dated 31.12.2012 and had dismissed

the application filed for a direction to the 1st respondent

2015 (1) ALD 427

herein to produce the original document. This order has

become final and there is now a finding of fact that the 1st

respondent is not possession of the document nor the

existence of the document has been demonstrated.

5. The basic requirements of Section 65 of the

Indian Evidence Act, 1872, is the requirement to show that

there was an original document which is not available and for

the petitioner to demonstrate that all steps were not taken to

produce the original. In the present case, the basic

requirement of demonstrating that an original of the

document was in existence has not been done. In fact, the

Trial Court has already held that the petitioner has been

unable to demonstrate the existence of such a document.

6. The judgment relied upon by the learned counsel

for the petitioner was a case where the respondents had not

produced the documents sought in the notice issued by the

petitioner and consequently the petitioner therein would be

entitled to the benefit of Section 65 of the Indian Evidence

Act, 1872. The facts, in the present case, as stated above are

at variance with the facts in the judgement cited by the

learned counsel for the petitioner.

7. In the circumstances, this writ petition is

dismissed. There shall be no order as to costs.

As a sequel, pending miscellaneous petitions, if any,

shall stand closed.

____________________________ R. RAGHUNANDAN RAO, J

01.05.2023 RKS