Madras High Court
N.Ravichandran vs Nallammal on 16 November, 2023
C.R.P(MD)No.2174 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 16.11.2023
CORAM:
THE HONOURABLE MR.JUSTICE P.B.BALAJI
C.R.P(MD)No.2174 of 2019
and
C.M.P.(MD)No.11376 of 2019
1.N.Ravichandran
2.N.Saravanan ... Petitioners/ /Plaintiffs
.Vs.
Nallammal ... Respondent / 1st Defendant
PRAYER: Civil Revision Petition filed under Article 227 of the
Constitution of India, against the fair and decretal order, passed in
I.A.No. 898Of 2018 in O.S.No.371 of 2013, dated 18.10.2019, on the file
of the Principal District Munsif, Karur.
For Petitioners : Mr.K.Suresh
For Respondent : Mr.P.Santhana Krishnan
ORDER
The plaintiffs filed a suit for declaration and injunction and have
taken out an application in I.A.No.898 of 2018, to receive an unregistered
Panchayat Vardhamanam, dated 30.09.1992, as secondary evidence in
support of their case.
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C.R.P(MD)No.2174 of 2019
2. The case of the revision petitioners as plaintiffs was that before
filing the said application, they had called upon the respondent /
defendant to produce the original of the said document, which according
to the plaintiffs, was in the custody of the respondent / defendant. To the
said memo, the respondent / defendant filed her objections stating that
there was no such document executed between the parties as alleged by
the plaintiffs and that no such document was available with the
respondent / defendant.
3. The application before the trial Court was resisted by the
respondent / defendant on the same ground that the document was not a
genuine document and that the original was not with the respondent /
defendant and in such circumstances, it cannot be allowed to be marked
as secondary evidence.
4. The trial Court dismissed the said application taking note of the
objections of the respondent / defendant and also on the ground that the
parties to the documents were not alive and therefore, the said document
cannot be marked as an exhibit on the side of the plaintiffs.
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C.R.P(MD)No.2174 of 2019
5. Aggrieved by the said order of the trial Court, the plaintiffs have
preferred the Civil Revision Petition, challenging the order on the ground
that the trial Court has failed to consider the purpose and intent of Section
65 of the Indian Evidence Act; the trial Court failed to consider that the
revision petitioners / plaintiffs had complied with the provisions of
Sections 65 and 66 of the Indian Evidence Act; no prejudice would be
caused to the respondent / plaintiff, if the said document was received as
an additional evidence; the revision petitioners / plaintiffs' father was a
signatory to the said document and therefore, it can be marked through
the revision petitioners, viz., plaintiffs.
6. I have heard Mr.K.Suresh, learned counsel for the revision
petitioners / plaintiffs and Mr.P.Santhana Krishnan, learned counsel for
the respondent / defendant.
7. The learned counsel for the revision petitioners would submit
that the trial Court has committed an error in dismissing the said
application on the grounds that the parties to the said document were not
alive and therefore, the same cannot be received as evidence and further,
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C.R.P(MD)No.2174 of 2019
in view of the stand taken by the respondent / defendant that the original
was not available with the defendant, the said document cannot be
received even as secondary evidence.
8. The learned counsel for the revision petitioners / plaintiffs would
rely on the following judgments:
(i) L.S.Sadagopan (Died) V. K.S.Sabarinathan reported in 2001-
SCC-Online (Mad.)-713;
(ii) Sri.Sai Educational Trust, rep. by its Founder & Managing
Trustee R.Kalyani V. N.Palanivelu reported in 2014-SCC-
Online(Mad.)1916; and
(iii) D.Sarasu V. Jayalakshmi reported in 2001-4-CTC-266,
for the propositions that the photostat copies can be received in evidence,
even if the case of the person seeking to produce the same was that the
original was in the custody of the opposite party and the opposite party
has denied its very existence; xerox copies can be received as secondary
evidence and relevancy and admissibility of the document can be
considered at the time of final disposal of the suit; though the original
document is the best evidence in a case, where the originals were either
lost or with a third party or some other party, then the secondary evidence
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C.R.P(MD)No.2174 of 2019
is admissible. The learned counsel for the revision petitioners/plaintiffs
prays for the revision petition being allowed.
9. Per contra, Mr.P.Santhana Krishnan, learned counsel for the
respondent / defendant would contend that none of the decisions on
which reliance was placed by the learned counsel for the revision
petitioners / plaintiffs would not apply to the facts of the present case, for
the simple reason that the document sought to be produced by the
revision petitioners / plaintiffs is an unregistered agreement and the
genuineness of the said agreement had been stoutly denied by the
defendant and in such circumstances, the document cannot be received.
10. I have paid my anxious consideration to the rival submissions
and I have also perused the documents placed before me, by way of typed
set of papers, including the impugned order. I have also gone through
judgments on which reliance is placed by the learned counsel for the
revision petitioners.
11. The document which is sought to be produced by the revision
petitioners / plaintiffs is an unregistered agreement, which had been
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C.R.P(MD)No.2174 of 2019
entered into between the father of the revision petitioners / plaintiffs and
the respondent / defendant. Notice was given following the procedure
under Section 66 of the Indian Evidence Act, calling upon the
respondent / defendant, to produce the original of the said agreement and
the respondent has filed her objections stating that she has not signed any
such agreement and no such agreement is in her custody.
12. The trial Court has dismissed the application on the ground that
when the respondent / defendant has denied the very existence of the said
agreement and the other signatory of the said agreement was not alive, the
said agreement cannot be marked as an evidence. However, the trial Court
also accepted the contention of the respondent / defendant on the ground
that the respondent has denied the genuineness of the said document.
However, it is for the plaintiffs to independently establish the truth and
genuineness of the agreement. The plaintiffs complied with the mandate
of Section 66 of the Indian Evidence Act, by calling upon the respondent /
defendant to produce the original agreement and to such notice given
under Section 66 of the Indian Evidence Act, the respondent / defendant
has filed her objections stating that the agreement was not genuine and
that in any event, it is not with her. Merely because the respondent /
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C.R.P(MD)No.2174 of 2019
defendant has taken such a stand, it cannot deprive the plaintiffs of an
opportunity to rely on the document to establish their case. However, it is
made clear that merely because the said document is allowed to be
marked on the side of the plaintiffs, the burden will be on the plaintiffs to
establish the admissibility, truth and genuineness of the document
independently, since the specific defence taken by the respondent /
defendant is that the said document is not genuine and she has not a
signed the said document.
13. Subject to the above direction, the trial Court shall receive the
photostat copy of the Vardhamanam dated 30.09.1992 as evidence, to be
marked as exhibit through P.W.1, one of the plaintiffs' in the box. It is
open to the respondent / defendant to cross-examine the plaintiffs as to
the veracity of the document and also independently disprove the
genuineness of the said document. However, it is made clear that the
document being admitted as secondary evidence, the burden is on the
plaintiffs to establish the truth and genuineness of the said document.
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C.R.P(MD)No.2174 of 2019
14. In fine, the Civil Revision Petition is allowed and the impugned
order dated 18.10.2019, in I.A.No. 898 of 2018 in O.S.No.371 of 2013,
on the file of the Principal District Munsif, Karur, is hereby set aside.
Considering that the suit of the year 2013, the trial Court shall expedite
the trial and in any event, complete the trial within a period of four
months from the date of receipt of copy of this order. There shall be no
order as to costs. Consequently, connected Miscellaneous Petition is
closed.
Index:Yes/No 16.11.2023
Internet:Yes/No
NCC:Yes/No
Ls
To
1. The Principal District Munsif,
Karur.
2. The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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C.R.P(MD)No.2174 of 2019
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C.R.P(MD)No.2174 of 2019
P.B.BALAJI,J.
Ls
C.R.P(MD)No.2174 of 2019
16.11.2023
https://www.mhc.tn.gov.in/judis
