Sri R.Durga Rao, vs Smt. K.Lavanya B.Lavanya
2021 Latest Caselaw 2111 Tel

          THE HON'BLE SRI JUSTICE B. VIJAYSEN REDDY

              CIVIL REVISION PETITION No.449 of 2017
ORDER:

Heard the learned counsel for the petitioner. There is no

representation on behalf the respondents either in person or through

counsel. The record shows service of notice of the respondent Nos.1, 2

and 5. The respondent Nos.3 and 4 are represented by their mother,

respondent No.1, who is served.

2. This revision is filed challenging the docket order dated

05.12.2016 in O.S.No.736 of 2013 passed by the Principal Senior Civil

Judge, Ranga Reddy District, whereunder the Court below refused to

receive in evidence the attested certified copy of Memorandum of Oral

Settlement dated 18.12.1993 marked as Ex.B34 in LGC.No.6 of 2004.

3. The petitioner/plaintiff filed a suit in O.S.No.736 of 2013 for

declaration and permanent injunction. During the trial, the GPA of the

petitioner/plaintiff was examined as P.W.1 and Exs.A1 to A22 were

marked. The counsel for the defendant raised objection with regard to

marking of attested copy of memorandum of oral settlement dated

18.12.1993 stating that the document is the certified copy obtained

from LGC.No.6 of 2004 and the said document was declared as invalid

document in the said LGC. Hence, the document cannot be looked

into.

4. The Court below pointed out that the document is an

unregistered document and the same was not considered in LGC.No.6

of 2004. At page No.16 of the order of the Land Grabbing Court in

LGC.No.6 of 2004, a finding was given that, "this particular document

- Memorandum of settlement dt:18-12-1993 was marked as Ex.B34 in

LGC.No.6/2004 and a clear finding that the Ex.B34 is a true copy of a

copy, it cannot be considered and it do not contain stamp and seal or

signatures of any officials of MRO, Serilingampally and there is a

finding that Ex.B34 is a fabricated document". The Court below further

pointed out that a writ petition was filed seeking a direction to the

Special Court to mark the document and to establish the relevancy and

proof of the document in accordance with law. It was discussed in the

writ order that mere marking of the document which is a certified copy

issued by Public authority would not amount to giving approval of its

genuineness, relevancy; marking of document would not cause

prejudice to the respondent and it does not amount to proving the

document. After the order was passed in WP.No.2032 of 2009, the

Land Grabbing Court marked the document as Ex.B34 in LGC.No.6 of

2004. However, a finding was given by the Land Grabbing Court that

Ex.B34 is a fabricated document. Further, finding was given by the

Court below, under the impugned order, that the document relates to

creating right of the party in the immovable property and it requires

registration. The document is a certified copy of the copy of the

document and it cannot be received as an evidence and the document

is inadmissible in evidence.

5. Learned counsel for the petitioner submitted that the judgment

of the Land Grabbing Court in LGC.No.6 of 2004 is challenged in

WP.No.10434 of 2013 before this Court, which is pending.

6. Admittedly, the document, which is styled as Memorandum of

Oral Settlement was marked as Ex.B34 in LGC.No.6 of 2004. It is not

in dispute that the Land Grabbing Court held that there the oral

agreement, Ex.B34, is a fabricated document. This Court is of the

opinion that a finding or decision given by the Land Grabbing Court

that Ex.B34 (memorandum of oral settlement) is a fabricated

document, cannot be a ground for the Court below for refusing to

receive the document. It is settled law that mere marking of document

does not dispense with its proof. Whether document is genuine or not

is a matter to be decided in the main suit.

7. At the time of receiving the document, the Court has limited

jurisdiction. The Court is required to see whether the document is

primary evidence or secondary evidence. If the document is secondary

evidence (as in the instant case), being certified copy or copy of the

certified copy (in LGC.No.6 of 2004), the Court may refuse to receive

the document unless the procedure contemplated under Section 65 of

the Indian Evidence Act is complied with. But without resorting to such

legal procedure, the Court below chose to reject the document as

inadmissible in evidence at the threshold. The objection taken by the

Court below having regard to the finding given in LGC.No.6 of 2004

that the document is fabricated, is unsustainable. That is the matter to

be considered on merits at the time of hearing the main suit

independently by giving cogent reasons taking into consideration

pendency of WP.No.10434 of 2013 filed challenging the judgment in

LGC.No.6 of 2004. The further objection that the document requires

registration is also unsustainable as no reasons, whatsoever, have

been recorded before coming to such conclusion. It is made clear that

the Court below shall examine the contents of the document and pass

speaking order giving clear reasons as to whether the document

requires registration or not.

8. For the reasons recorded above, the order of the Court below is

unsustainable and liable to be set aside. The Court below is directed to

receive the document, styled as Memorandum of Oral Settlement

(marked as Ex.B34 in LGC.No.6 of 2004). However the document,

being secondary evidence, shall not be taken on record until necessary

application is filed by the petitioner under Section 65 of the Indian

Evidence Act for receiving the secondary evidence. Upon such

application being filed, the Court below shall pass appropriate orders in

accordance with law and also decide the issue whether the document

is compulsorily registrable or not as stated supra.

In view of the above observations, the civil revision petition is

allowed. Pending miscellaneous petitions, if any, shall stand closed.

There shall be no order as to costs.

__________________ B. VIJAYSEN REDDY, J July 15, 2021 DSK