Sri. M R Shivarudraiah vs Sri Rudrappa
2021 Latest Caselaw 1462 Kant

                             1

  IN THE HIGH COURT OF KARNATAKA, BENGALURU

      DATED THIS THE 28TH DAY OF JANUARY, 2021

                         BEFORE

      THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT

      WRIT PETITION NO.14488 OF 2020 (GM-CPC)
BETWEEN:

1 . SRI. M R SHIVARUDRAIAH
S/O RUDRAPPA
AGED ABOUT 49 YEARS

2 . SMT B L RATHNAMMA
AGED ABOUT 42 YEARS
WIFE OF SHIVARUDRAIAH

BOTH ARE RESIDING AT NO.198
"RAJATHADRI 6TH 'A' MAIN
'A' SECTOR M.I.G,
YELEHANKA NEW TOWN
BANGALORE-560 064.
                                       ... PETITIONERS
(By SRI.D.L.N.RAO A/W;
    SRI.SRINIVASA.C AND
    SRI.B.G.ASHOK KUMAR, ADVOCATES)

AND

1 . SRI RUDRAPPA
SON OF CHIKKARUDRAPPA
AGED ABOUT 84 YEARS

2 . SRI M R SOMASHEKAR
AGED ABOUT 57 YEARS
SON OF RUDRAPPA

3 . SMT GEETHA SOMASHEKAR
AGED ABOUT 51 YEARS
WIFE OF SOMASHEKARA

ALL RESIDING AT "RAJATHADRI"
NO198, GROUND FLOOR, 6TH A MAIN,
"A" SECTOR, MIG, YELAHANKA NEW TOWN
BANGALORE-560064.
                                      ... RESPONDENTS
                             2

(BY SMT.S.SUSHEELA SENIOR COUNSEL A/W;
   SRI.SOMANATHA.H ADVOCATES FOR
   C/R1 (CP.NO.1027/202O);
   SRI.G.BALAKRISHNA SHASTRY ADVOCATE FOR R2 & R3)


     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET
ASIDE THE IMPUGNED ORDER, DATED 17.01.2020, PASSED
IN O.S NO.1209/2008, ON THE FILE OF THE XXXVIII ADDL.
CITY CIVIL JUDGE (CCH39) AT BANGALORE, VIDE ANNEXURE
K AND CONSEQUENTLY ALLOW THE WRIT PETITION AND
DISCORD THE EVIDENCE OF DW-2 AND DISCORD THE
ALLEGED DOCUMENT MARKED AS EX.D-345 IN THE SUIT;
AND ETC.,



     THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR PROUNCEMENT OF ORDERS, THIS DAY, THE COURT
MADE THE FOLLOWING:


                    ORDER

Petitioners being 1st & 3rd defendants in a partition

suit in O.S.No.1209/2009 are knocking at the doors of the

writ court for assailing the order dated 17.01.2020 vide

Annexure-K whereby the learned XXXVIII Addl. City Civil

Judge, Bengaluru having overruled petitioners objection

has marked a xerox/photostat copy of Deed of Co-

ownership dated 15.05.1996 as Exhibit-345, in the cross-

examination of the witness concerned; the contesting

respondents having entered appearance through their

counsel resist the writ petition making submission in

support of the impugned order.

2. Having heard the learned counsel for the parties

and having perused the petition papers, this Court is

inclined to grant indulgence in the matter as under and for

the following reasons:

(a) Admittedly, suit is one for partition; petitioners

happen to be the contesting defendants therein; during the

course of trial, the subject document which is a

xerox/photostat copy of alleged Deed of Co-ownership has

been marked in the cross examination of Defendant No.2

by confronting the same under Order VII Rule 14(4) of the

Code; the only reason stated by the Court below for

marking the same is that the witness in the box ie., DW-2

admits it; this is completely erroneous, to say the least; the

application of Order VII Rule 14(4) is confined to cross-

examination of plaintiffs' witness, which is not the case

here; although, in a partition suit, ordinarily, the rank of

parties pales into insignificance, the norm enacted in the

said provision applies in the absence of a Counterclaim by

the said defendant who was being cross-examined.

(b) The subject document which appears to be a

copy of the title deed, is marked apparently as a secondary

evidence; this presupposes the existence of the primary

evidence namely the original document; primary evidence

is that which does not by its very nature suggests that

better evidence may be available; secondary evidence is

that by its very nature does suggest that better evidence

may be available; the original of a documentary evidence

constitutes primary evidence and a copy thereof is

secondary evidence of its contents, needs no elaboration;

the distinction is important in connection with documents,

because their contents must, as a general rule be proved

by production of the original, by virtue of the "Best

Evidence Rule", as articulated by Lord Hardvicke in

OMYCHUND vs. BARKER (1745) I ATK. 21, AT P.49, as

under:

"The judges and sages of the law have laid it down that there is but one general rule of evidence, the best that the nature of the case will allow..." OMYCHUND vs. BARKER (1745) I ATK. 21, AT P.49.

Thus where there was nothing better, recourse might be

had to evidence which would otherwise be inadmissible;

this well established rule of evidence has not animated the

impugned order and thus there is an error apparent on its

face.

(c) Section 64 of the Indian Evidence Act, 1872,

which has enacted the Best Evidence Rule requires that

the contents of a document must be proved by the

production of the original document and that the

secondary evidence of it is not normally admissible;

Section 65 enacts the exception to this rule by laying down

the circumstances in which secondary evidence may be

given; the principle is that as long as the original exists

and is available, it being the best evidence must be

produced; however, if it cannot be produced on account of

loss/destruction/detention by others, who despite notice

decline to produce or for such other reasons, then

secondary evidence becomes admissible; the reason d'etre

of this rule is stated by PORTER.J., in THOMAS vs. T, 1 La

166, 168 (Am) as follows:

"The rule is only another form of expression for the idea that when you lose the higher proof, you may offer the next best in your power .... The rule does not mean that men's rights are to be sacrificed and their property lost because they cannot guard against events beyond their control; it only means that, so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to that".

The section contemplates a situation wherein the

document sought to be produced in evidence is in the

possession of the opposite party or a third person. When it

is in possession of the opposite party and secondary

evidence of any document referred to in cl.(a) is desired to

be given then notice to produce must be served on him as

prescribed by Order XI Rule 16 of CPC except in the cases

mentioned in the proviso to Section 66 of the Act. When

service is proved and the opposite party fails to produce

the document, the party serving notice becomes entitled to

give secondary evidence of it. Sections 65 & 66 being

cognate provisions need to be read together:both the

sections relate to the admission of secondary evidence of a

document and its conditions. Section 65 lays down the

cases wherein secondary evidence of a document may be

given and s.66 lays down that previous notice to produce

must be given except in the cases saved by the proviso to

the section.

(d) Mr.D.L.N.Rao, learned Sr. Advocate appearing

for the petitioner is more than justified in drawing the

attention of the court to the last two sentences in para 10

of the plaint which read: "The original documents No.1, 2 &

6 are in the custody of Defendants. Hence the plaintiffs are

herewith producing only the Xerox/photostat copies to this

Hon'ble Court." The original List of Documents initially

filed along with the plaint shows that these specified

documents are not the Deed of Co-ownership whose

xerox/photostat copy is now marked; of course, the

subsequent List of Documents filed years thereafter ie., on

08.09.2014 mentions about the original of this Deed being

in the custody of one of the defendants; neither in the

pleadings nor in the List of Documents nor in any

application, this assertion of the plaintiff about its custody

is controverted; no notice is issued to the defendants

either, asking them to produce the original, which if issued

would have arguably constituted some foundation for

producing the secondary evidence; this being the position,

there is a second error that further infects the impugned

order.

(e) It was contended by learned Sr. Advocate Smt.

Susheela appearing for the respondents that the original of

the document was seized by the Income Tax Department;

however, that is not the case taken up in the pleadings or

otherwise by the parties in the court below; even otherwise,

when & in what circumstances such seizure took place, is

not forthcoming; no notice is sent to the Income Tax

Department for summoning of the original, nor any reason

for not doing it, is stated; apparently, the properties

involved are huge, their value arguably being very high; in

such a circumstance, it cannot be said that any foundation

is laid for producing the secondary evidence, the related

argument as to the required nature & strength of such

foundation, being beside the point.

(f) Metaphorically speaking, the foundational facts

which one needs to lay for producing the secondary

evidence, need not be as robust as the foundation that is

laid for the main building; but it has to be as strong as the

one that is put for the erection of a structure like an

outhouse; even this standard is not met by the contesting

respondents who seek to produce a photostat copy of the

document in question, by way of secondary evidence; the

Apex Court in Siddiqui Vs. A. Ramalingam, (2011) 4 SCC

240 at para 12 has observed as under:

"Provisions of Section 65 of the Act 1872 provide for permitting the parties to adduce secondary evidence. However, such a course is subject to a large number of limitations. In a case where original documents are not produced at any time, nor, any factual foundation has been led for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the

documentary evidence is required to be proved in accordance with law. The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon..."

(g) The vehement contention of learned Sr.

Advocate Smt.Susheela that the Xerox copy of the

document is only marked that too with the admission of the

witness in the box who happens to be one of the defendants

and therefore, the foundation should be taken to have been

laid, is bit difficult to countenance; true it is that, mere

marking the copy of a private document does not

tantamount to proof of its contents' execution; the decision

of the Co-ordinate Bench in K.Anjaneya Setty Vs. K.H.

Rangaiah Setty, ILR 2002 KAR 3613 cited by the counsel,

does not come to rescue of the respondents; at para 13

therein, the learned Co-ordinate Judge has stated:

"Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the Trial Court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the Court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration... "

This Ruling specifically emphasizes tentative marking of

a document which is objected; even this has not happened

in the case at hands; similarly, at para 30, learned Judge

has observed as under:

"...the proper course for the Courts would be to mark such documents, subject to objections, permit the parties to adduce evidence, instead of putting questions to the lawyers at the time of argument to state for what purpose they are relying on the said document. Thereafter consider the respective contentions at the time of final hearing and then decide whether the said document could be looked into for collateral purposes and whether non-registration of the said document has made it inadmissible in evidence. Therefore, the approach of the Court below cannot be sustained..."

These observations are confined to an original document

which being compulsorily registrable, was not so registered

and which was not duly stamped; after all, the context of

the observations cannot be lost sight off while adjudging

the invocability & precedential value of a decision, cited at

the Bar.

In the above circumstances, this Writ Petition

succeeds; a writ of certiorari issues quashing the

impugned order to the extent it marks in evidence the

Xerox copy of the document in question; however, even

now, it is open to the respondents to lay a fresh foundation

as provided u/s 65 of the Indian Evidence Act, 1872, for

producing the secondary evidence of the document in

question.

Costs made easy.

Sd/-

JUDGE

Snb/