Madras High Court
K. Abhuthakir vs G.K. Thangavel on 2 March, 2021
C.R.P.(PD) No.411 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.03.2021
CORAM
THE HON'BLE MRS. JUSTICE V.BHAVANI SUBBAROYAN
C.R.P.(PD) No.411 of 2021
and
C.M.P. No.3485 of 2021
K. Abhuthakir ... Petitioner
Vs.
G.K. Thangavel ... Respondent
Prayer: This Civil Revision Petition filed under Article 227 of the
Constitution of India praying for to set aside the fair and decreetal order
dated 21.12.2020 made in I.A. No.2 of 2020 in O.S. No.175 of 2015 on
the file of the IV Additional District and Sessions Court, Coimbatore.
For Petitioner ... Mr.C. Prabakaran
For Respondent ... No Appearance
****
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C.R.P.(PD) No.411 of 2021
ORDER
The Civil Revision Petition has been filed under Article 227 of the
Constitution of India praying for to set aside the fair and decreetal order
dated 21.12.2020 made in I.A. No.2 of 2020 in O.S. No.175 of 2015 on
the file of the IV Additional District and Sessions Court, Coimbatore.
2. The case of the petitioner is that the suit in O.S.No.175 of 2015
has been filed on the file of the District Judge, Coimbatore, by the
plaintiff/petitioner herein for recovery of money based on the alleged
mortgage. The mortgage deed was executed by the defendant/respondent
herein in favour of the plaintiff/petitioner herein for borrowing the
money. During the Trial, when the matter was posted for examination of
the defendant side witness, the defendant/respondent herein has taken a
specific stand that he did not borrow any money from the
plaintiff/petitioner herein. One Eswari has borrowed money and she has
given her title deed and the said title deed has been replaced by giving
his title deed for which the plaintiff's brother i.e, Khader Hussain has
given an undertaking by his own hand-writing in Rs.20/- stamp paper
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C.R.P.(PD) No.411 of 2021
dated 30.12.2013. The said original was not given to the
defendant/respondent herein. Therefore, copy of the said undertaking is
available with the defendant/respondent herein which was filed along
with the written statement. In order to produce original to mark on the
side of the defendant side, the said Khader Hussain who is the brother of
the plaintiff/petitioner herein failed to produce original undertaking, in
spite of the summons issued by the Court below. The plaintiff/petitioner
herein and his brother colluded together with intention to prevent the
defendant/respondent herein to produce original documents and evaded
the service. The plaintiff and his brother managed to return the summons
as if the said Khader Hussain is not available in the address mentioned in
the undertaking letter dated 30.12.2013. As there is no alternative
remedy, the defendant/respondent herein has filed I.A. 2 of 2020 in O.S.
No.175 of 2015 under Section 151 CPC on its file seeking for to mark
secondary evidence viz., xerox copy of the undertaking letter dated
30.12.2013 executed by plaintiff's brother Khader Hussain in the
defendant's favour. The same was allowed by order dated 21.12.2020.
Being aggrieved by the aforesaid order, the plaintiff/petitioner herein has
filed the present Civil Revision Petition to set aside the same.
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C.R.P.(PD) No.411 of 2021
3. The learned counsel for the petitioner would submit that the
xerox copy of the document cannot be allowed as evidence for any
purpose to mark even as secondary evidence which is not emanated from
the correct origin and the marking of xerox copy of the document is
nothing but collecting the piece of unwanted evidences which does not
have evidential value. Though the proof and relevancy of the document
can be considered at the time of Trial, but the Xerox copy of the
document cannot be marked at all, as does not arise from a proper origin.
He further submitted that the defendant/respondent herein failed to
follow the condition stipulated in the order 16 of CPC and the said
application could not be maintainable in view of Sections 63, 65 and 66
of Indian Evidence Act. The xerox copy is no way connected and
relevant to decide the present suit. Hence, the defendant/respondent
herein cannot be allowed to mark the said document. Without
considering the aforesaid aspects, the Court below has allowed the said
interlocutory application stating that mere marking of document is not
sufficient and it should be proved through by way of examining other
evidences and copy was marked on the side of the petitioner/defendant
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C.R.P.(PD) No.411 of 2021
subject to the proof of relevancy. When the proposed document is not
relevant to the suit, the Trial Court ought to have dismissed the
application filed by the defendant/respondent herein. Hence, this Court
may be pleased to set aside the order dated 21.12.2020 passed by the
Court below.
4. Per contra, on the side of the defendant/respondent herein it
was submitted before the Court below that original copy of the said
undertaking is available with the petitioner's brother which xerox copy
was filed along with the written statement. For marking of the original
document, the defendant/respondent herein has filed an application and
the Court below issued summon to produce the original undertaking.
Despite that, he failed to produce the original undertaking and the
summon was returned un-served. The petitioner and his brother colluded
together with intention to prevent the defendant/respondent herein to
produce the original documents and evaded the service. The said
document is very much essential for the case as it only to prove case and
marking of the secondary evidence is allowed as per Sections 63, 65 and
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C.R.P.(PD) No.411 of 2021
66 of the Indian evidence Act and after applying the mandatory
provisions it can be marked as the secondary evidence. Therefore, he
prayed that he is entitled to produce as the secondary evidence.
5. Heard, the learned counsel for petitioner and perused the
material available on record.
6. Admittedly, the document is a xerox copy and by mere marking
of document cannot be sufficient to hold that the document is proved and
it is relevant. It is the duty of the party who produce the document to
prove that the document is admissible and then only the lis can be
decided. Originally, summon was issued to the plaintiff's brother and he
has not turned out and the said summon was returned unserved. When
collecting the evidence at the time of trial, any document marked by the
parties, it can be received with the objection and it can be decided
whether it is admissible one, genuine and relevant at the time of
Judgment only and hence allowed the said application.
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C.R.P.(PD) No.411 of 2021
7. It is seen from the application filed by the defendant/ respondent
herein under section 151 of CPC to permit the defendant/respondent to
mark the xerox copy of the undertaking letter dated 30.12.2013 as
secondary evidence executed by the petitioner's brother Khader Hussain
in favour of the defendant/respondent herein. It is also seen that there is
specific stand of the defendant/respondent herein that he did not borrow
any money from the plaintiff/the petitioner herein as alleged and actually
one Eswari borrowed money and she has given her title deed and the said
title deed has been replaced by giving his title deed for which the
respondent's brother i.e., Khader Hussain has given an undertaking by his
own handwriting in Rs.20/- stamp paper dated 30.12.2013.
8. On going through the said averments, it is seen that originally
defendant/respondent herein has filed an application for issuing of
summons to produce the said document which has also been mentioned
in the written statement filed before the Court below. The Court below
also issued summon and the plaintiff's brother who is in possession of the
said document, has not turned out with the same and in order to prove his
case, he wanted the said person to produce the original. The Court below
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C.R.P.(PD) No.411 of 2021
also issued summon to the address which has been stated in the said
undertaking. The brother of the petitioner has not received the said
summon and evaded the service of summon. Hence, the
defendant/respondent herein could not persuade the said person to bring
the same before the Court and left the matter for default. Now he came
up with the petition to mark the said xerox copy of the document which
has also been filed along with the written statement on his side. The court
below has also considered the aforesaid claim of the
defendant/respondent herein and counter filed by the plaintiff/petitioner
herein that the same cannot be marked and it cannot be relevant to the
issue and therefore it cannot be allowed to mark the same as secondary
evidence.
9.Admittedly, the defendant/respondent herein has tried at level
his best to summon the said person, who is in possession of the original
document but could not succeed. Hence, he preferred the Interlocutory
application at least to mark Xerox copy available with him. The Court
below after considering the submissions made by both parties, has
allowed the said application on the ground that the mere marking of the
said document is not sufficient to hold that the document is proved and it
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C.R.P.(PD) No.411 of 2021
is relevant and it is the duty of the party who produce the documents to
prove that the document is admissible genuine and it is relevant to decide
the lis at the time of trial. When objection is raised at the time of marking
evidence regarding the admissibility of any such document, the trial
Court can take note of such objection and mark the objected document as
Exhibit subject to said objection and it can be decided at the time of trial.
There is no illegality in adopting such stand by the trial Court wherein
evidence can be verified that will not be put an end to the said issue
regarding the admissibility of the said document and if the witnesses are
examined regarding the said document, the clear picture regarding the
validity of the said document and admissibility of the same comes out.
The trial Court can determine the correctness of the said document and
there is no error in arriving such finding when the same is received with
the objection at the time of trial, the validity proof and relevancy can be
decided by the Trial Court.
10. In view of the aforesaid observations, there is no illegality or
infirmity in the order passed by the Trial Court. Hence, this Civil
Revision Petition has no merits and it is liable to be dismissed.
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C.R.P.(PD) No.411 of 2021
V.BHAVANI SUBBAROYAN, J.,
lbm
11. In the result, this Civil Revision Petition stands dismissed.
Consequently, connected miscellaneous petition is closed if any. There
shall be no order as to costs.
02.03.2021
Lbm
Index: Yes/No.
Speaking/Non-Speaking order
Internet: Yes/No.
To:
The IV Additional District
and Sessions Court,
Coimbatore.
C.R.P.(PD) No.411 of 2021
and
C.M.P. No.3485 of 2021
https://www.mhc.tn.gov.in/judis/
