Madras High Court
P.Balasubramanyam vs Gopalan on 30 September, 2024
Author: S.S. Sundar
Bench: S.S. Sundar
OSA.Nos.182 & 183/2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.09.2024
CORAM :
THE HONOURABLE MR. JUSTICE S.S. SUNDAR
AND
THE HONOURABLE DR. JUSTICE A.D.MARIA CLETE
OSA.Nos.182 & 183/2024
P.Balasubramanyam ... Appellant in both
Appeals
Vs.
1.Gopalan
2.G.Vidya ... Respondents in both
Appeals
Common Prayer : Original Side Appeal filed under Order 36 Rule 1 of
Original Side Rules read with Clause 15 of Letters Patent against the order
dated 28.03.2024 passed in Application Nos.1357 & 1356/2024 in
TOS.Nos.38/2021 [OP.No.994/2019].
For Appellant : Ms.G.Sumitha
1
https://www.mhc.tn.gov.in/judis
OSA.Nos.182 & 183/2024
COMMON JUDGMENT
[Judgment of the Court was delivered by S.S.SUNDAR, J.,]
(1)The above appeals are directed against the common order of the learned
Single Judge dated 28.03.2024 made in A.Nos.1357 & 1356/2024 in
TOS.No.38/2021.
(2)Since the above appeals are directed against the common order, the
appeals are disposed of by this common judgment.
(3)Heard the learned counsel for the appellant and perused the records.
(4)Brief facts that are necessary for the disposal of these appeals are as
follows:
(5)The appellant, as petitioner, filed OP.No.994/2019 for grant of Probate of
a Will dated 12.05.2009 alleged to have been executed by one
K.Atmaraman and his wife K.Kamala. Since respondents disputed the
Will, the said OP was converted into TOS.No.38/2021. After examination
of the first witness on the side of the respondents, who had disputed the
Will, the respondents filed applications in A.Nos.1356 and 1357/2024 to
reopen chief examination of DW1 to receive the Death Summary of the
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OSA.Nos.182 & 183/2024
Testator as well as the consent for investigative procedure and to receive
those documents for the purpose of marking those documents.
(6)The said applications were opposed by the appellant mainly on the
ground that the documents are only photocopies and therefore, they are
unauthenticated documents. It is also stated that the respondents herein
have not explained the custody of the originals of the documents which
are sought to be produced as additional evidence. The grievance of the
appellant is that the learned Single Judge allowed both the applications
without considering the objections of the appellant. Since the respondents
are not the author of documents, it is contended by the appellant that the
respondents without an explanation as to how they could get those
documents, cannot be permitted to mark the documents.
(7)This Court having regard to the nature of dispute, is unable to
countenance the submissions of the learned counsel for the appellant for
the following reasons.
(8)Even the Xerox copies of the documents can be marked subject to
objections and valid explanation for non production of original
documents. The question raised is whether the respondents have satisfied
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OSA.Nos.182 & 183/2024
the Court to mark secondary evidence. Secondary evidence can be let in
subject to satisfying Section 65 of Evidence Act. A photocopy of Xerox
copy can be permitted to be secondary evidence when non production of
the original is accounted for. This Court by permitting the respondents to
reopen the chief examination to mark the document does not dispense
with any statutory requirement. Therefore, the learned Judge while
allowing the applications to reopen chief examination of DW1 for the
purpose of marking additional documents, did not entertain the arguments
regarding admissibility of the documents. On the basis of objection, the
Court may decide as to the admissibility while marking document.
Without prejudice to the rights of the appellant and subject to
admissibility or relevance, documents can be permitted to be marked. The
learned Judge has in fact, preserved the right of appellant to cross-
examine the witnesses.
(9)Therefore, this Court, at this stage, having regard to the peculiar
circumstances, is not inclined to go into the admissibility of the document.
However, it is open to the appellant to raise all his objections as to the
admissibility or any other grounds that are available to him. This Court
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OSA.Nos.182 & 183/2024
finds no serious prejudice that is likely to be caused to the appellant at
this stage to allow the applications for reception of additional documents
as well as to reopen the chief examination of DW1 for the purpose of
marking the additional documents. This Court is of the view that the
learned Judge has exercised his discretion judiciously and hence, no
interference is called for.
(10)In view of the aforesaid reasons, the Original Side Appeals stand
dismissed. No costs.
[S.S.S.R., J.] [A.D.M.C., J.]
30.09.2024
AP
Internet : Yes
https://www.mhc.tn.gov.in/judis
OSA.Nos.182 & 183/2024
S.S. SUNDAR, J.,
and
A.D.MARIA CLETE, J.,
AP
OSA.Nos.182 & 183/2024
30.09.2024
https://www.mhc.tn.gov.in/judis
