Telangana High Court

Tahira Ahmed Basith And Another vs Shameem Khan on 23 February, 2024

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            THE HONOURABLE SMT. JUSTICE K.SUJANA

     CIVIL REVISION PETITION Nos.3126 and 3128 of 2022

COMMON ORDER:

Since both these Civil Revision Petitions arise out of same

suit, both these Civil Revision Petitions are being disposed of by way

of this common order.

2. Civil Revision Petition No.3126 of 2022 is filed against the

order dated 26.07.2022 passed by the learned XI Additional Chief

Judge, City Civil Court, Hyderabad, allowing I.A.No.599 of 2020 in

O.S.No.276 of 2019 filed by respondent No.1 herein/plaintiff under

Order VII Rule 14-A CPC read with Section 151 CPC with a prayer

to receive a copy of Partition Deed, which was received under Right

to Information Act, 2005 (for short "RTI Act"), as part of the record.

3. Whereas Civil Revision Petition No.3128 of 2022 is filed

against order dated 26.07.2022 passed by the learned XI Additional

Chief Judge, City Civil Court, Hyderabad, allowing I.A.No.619 of

2020 in I.A.No.599 of 2020 in O.S.No.276 of 2019 filed by

respondent No.1 herein/plaintiff with a prayer to lead secondary

evidence in respect of partition deed dated 01.01.1954.

4. The brief facts of the case are that originally, one

Mr.Yousufuddin purchased the land to an extent of 9032 sq.yards

covered by Survey Nos.117 and 118, Block 58, situated at Banjara

Hills, Shaikpet Mandal, Hyderabad, under a registered sale deed

bearing document No.358 dated 6th Khurdad, 1342 Fasli (1932 AD),

who in-turn sold the same to Mr. Syed Mohiuddin Saheb through a

registered sale deed bearing document No.234, dated 16th Isfandar,

1348 Fasli, and delivered possession to the purchaser. The said

Mohiuddin Saheb constructed a bungalow, out houses, garages etc.,

and the said premises was given municipal number as 8-2-594 and

he died leaving behind his three children i.e., two sons and one

daughter, and the said land was orally divided into two equal shares

by the two sons and rights of their sister were settled by giving

another immovable property. The same is evident from the orders

passed by the Urban Land Ceiling Department, Hyderabad, vide File

No.E/8732/76, dated 28.05.1982 and from the development

agreement entered by the revision petitioners/defendant Nos.4 and

5 with defendant No.6. Respondent No.1 herein is the daughter of

Mr. Ghousuddin, and respondent Nos.2 to 4 are the other children

of late Syed Shamsuddin. Respondent No.1 herein filed the suit for

recovery of 1200 square yards which was left over by her father

after gifting certain portions to them from the half of 9032 sq.yards

that fell to her father's share and that the revision petitioners filed a

document titled as acknowledgment of partition deed, in which, it is

shown that the father of respondent No.1 was allotted admeasuring

3504.50 sq.meters out of land admeasuring 9032 sq.yards and also

5032 sq.meters of land to the share of Ghousuddin.

5. It is stated that the said document was filed by Mr.

Ghousuddin before the ULC authorities but a copy of the very same

document obtained by respondent No.1 from the ULC authorities

shows that the land allotted to Mr. Ghousuddin is 4629 sq.meters

which is also false. It is further stated that the fabricated document

is already a part of the record filed by the revision petitioners and

therefore, respondent No.1 sought to file a copy of the said partition

deed received under RTI Act and then she came to know about

execution of the partition deed from the written statement filed by

revision petitioner No.2 and the respondent No.5 herein. Therefore,

respondent No.1 filed I.A.Nos.599 and 619 of 2020 seeking to

receive the partition deed obtained under RTI Act and to lead

secondary evidence in respect thereof.

6. The Revision Petitioners filed counter denied the averments of

the I.A.s by stating that the document which is now sought to be

filed before the Court is a fabricated one and the original of the

document has to be summoned for the purpose of ascertaining the

validity and genuineness of the said document; that respondent

No.1 planted a fabricated document before the ULC authorities and

is now seeking to rely on the said document which was obtained

under RTI Act and this case does not fall under Section 65(c) nor

under Section 65 of the Evidence Act (for short 'the Act'). It is not

the case of respondent No.1 that the document obtained under RTI

Act is a copy of the original document which was produced before

the ULC authorities and the said document does not bear any

endorsement with regard to its validity and it is not known whether

it is checked with the original document by any authority and more

so, when the said document is not a public document, it cannot be

accepted as secondary evidence and the manner in which the said

document can be looked into is only after the Original Partition

Deed relied upon by respondent No.1 is called for from ULC

authorities and not otherwise, as such, prayed to dismiss the I.A.s.

7. The trial Court after hearing both the versions passed the

orders under revision for receiving the documents under Section

65(c) of the Act subject to proof, relevancy and admissibility.

Aggrieved by the said orders, the revision petitioners filed the

present Civil Revision Petitions on the ground that the procedure

adopted by the Court below in allowing the subject I.A.s is contrary

to law and the Court below ought to have dismissed the subject

I.A.s and that the document which is obtained under RTI Act is not

a public document and there is no certification to show that the

subject document is the copy of the original document, as such, the

subject document is false and fabricated one.

8. Learned counsel for the petitioners would submit that the

subject document said to have been obtained by respondent No.1

under RTI Act is not a public document and it is not a certified copy

of the original document. He would further submit that the Court

below ought to have seen that the case of respondent No.1 does not

fall within the purview of Section 65(c) of the Act. Therefore, the

subject document cannot be received as part of the record. In

support of his contentions, he has relied on the judgment rendered

by the Hon'ble Supreme Court in Civil Appeal No.4910 of 2023

dated 29.11.2023, and a common order dated 11.12.2015 passed

by the erstwhile High Court of Andhra Pradesh in Datti Kameswari

Vs Singam Rao Sarath Chandra and another 1.

9. Learned counsel for respondent No.1 would submit that a

copy of the subject document was obtained by respondent No.1

under RTI Act and there is a pleading by respondent No.1 to that

effect. Therefore, there is no illegality in the orders under revision.

In support of his case, the learned counsel has relied on the order

dated 15.04.2021 passed by this Court in C.R.P.No.3688 of 2016.

10. Heard Sri K.V.Rusheek Reddy, learned counsel for the

petitioners as well as Sri Mohammad Adnan, learned counsel for the

respondents.

2015 SCC Online Hyderabad 389

11. Learned counsel for the petitioners in support of his

contention that as the subject document is not a public document

and is not a certified copy of the original document, it does not fall

under any of the provisions of Section 65 of the Act, has relied on

the judgment of Hon'ble Supreme Court in Civil Appeal No.4910 of

2023, in which, the Hon'ble Supreme Court while examining the

admissibility of secondary evidence, deduced certain principles in

para 33 which read as follows:

33. After perusing various judgments of this Court, we can deduce the following principles relevant for examining the admissibility of secondary evidence:

33.1 Law requires the best evidence to be given first, that is, primary evidence.

33.2 Section 63 of the Evidence Act provides a list of the kinds of documents that can be produced as secondary evidence, which is admissible only in the absence of primary evidence.

33.3 If the original document is available, it has to be produced and proved in the manner prescribed for primary evidence. So long as the best evidence is within the possession or can be produced or can be reached, no inferior proof could be given.

33.4 A party must endeavor to adduce primary evidence of the contents, and only in exceptional cases will secondary evidence be admissible. The exceptions are designed to provide relief when a party is genuinely unable to produce the original through no fault of that party.

33.5 When the non-availability of a document is sufficiently and properly explained, then the secondary evidence can be allowed.

33.6 Secondary evidence could be given when the party cannot produce the original document for any reason not arising from his default or neglect.

33.7 When the copies are produced in the absence of the original document, they become good secondary evidence.

Still, there must be foundational evidence that the alleged copy is a true copy of the original.

33.8 Before producing secondary evidence of the contents of a document, the non - production of the original must be accounted for in a manner that can bring it within one or other of the cases provided for in the section.

33.9 Mere production and marking of a document as an exhibit by the Court cannot be held to be due proof of its contents. It has to be proved in accordance with the law.

12. He has also relied on the common order of erstwhile High

Court of Andhra Pradesh in Datti Kameswari (supra), in para 17 of

which, it is held that xerox copies certified by the designated Public

Information Officer under RTI Act of the private documents are not

certified copies within the meaning of the provisions of Section 65 of

the Evidence Act. They are merely true copies of the private

documents available in the records of the particular Department.

The production and marking of such copies is permissible only after

laying a foundation for acceptance of secondary evidence under

clauses (a) (b) or (c) of Section 65 of the Act. The conditions

prescribed in the above clauses (a), (b) or (c) of Section 65 of the Act

have to be fulfilled before marking the true copies obtained under

the RTI Act. However, the true copies of public documents certified

by the designated Information Officer can be taken as certified

copies of the public documents.

13. Learned counsel for respondent No.1 in support of his

contention stated that the subject document is not a public

document, has relied on the order dated 15.04.2021 passed by this

Court in C.R.P.No.3688 of 2016 and also states that the foundation

for acceptance of secondary evidence under Section 65 of the Act,

has to be made at the time of marking of documents and it is not

necessary to lay the foundation at the stage of receiving the

documents.

14. He has further relied on the common order of erstwhile High

Court of Andhra Pradesh in Datti Kameswari (supra), in para 17 of

which, it is clearly held that xerox copies certified by the designated

Public Information Officer under RTI Act of the private documents

are not certified copies within the meaning of the provisions of

Section 65 of the Act, and in para 18 thereof, it is held that in

C.R.P.No.3031 of 2015, since the documents sought to be produced

are true copies of the public documents, those documents can be

treated as certified copies, whereas, in C.R.P.No.3048 of 2015, the

documents now sought to be produced are true copies of registered

sale deeds, as such, they can be marked as secondary evidence, if

the party seeking to mark those documents fulfills the conditions

prescribed under Section 65(a) to (c) of the Act.

15. Learned counsel for respondent No.1 submits that copies of

the documents can be marked only after laying foundation under

Section 65 (a) (b) and (c) of the Act, 1872, and the said condition

has to be fulfilled before marking the true copies obtained under RTI

Act. He also relied on the judgment of Hon'ble Supreme Court in

Dhanpat Vs Sheo Ram (deceased) through legal representatives

and others 2 , in para Nos.20, 21 and 22 of which, it is held as

follows:

20. This Court in Bipin Shantilal Panchal V. State of Gujarat, deprecated the practice in respect of the admissibility of any material evidence, where the Court does not proceed further without passing order on such objection. It was held that all objections raised shall be decided by the Court at the final stage. The Court held as under: (SCC pp.5-6, paras 14-

15)

"14. When so recast, the practice which can be a better substitute is that: 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

(2020) 16 SCC 209

objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the Court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.)

15. The above procedure, if followed, will have two advantages. First is that the time in the trial Court, during evidence-taking stage, would not be wasted on account of raising such objections and the Court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. ?Second is that the superior Court, when the same objection is recanvassed and reconsidered in appeal or revision against the final judgment of the trial Court, can determine the correctness of the view taken by the trial Court regarding that objection, without bothering to remit the case to the trial Court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses."

21. This Court in Z.Engineers Construction (P) Ltd. V.Bipin Bihari Behera, held that even in respect of deficiency of stamp duty in the State of Orissa where a question arose as to whether possession had been delivered in pursuance of a registered power of attorney, the same was a question of fact which was required to be decided after the evidence was led.

22. There is no requirement that an application is required to be filed in terms of Section 65(C) of the Evidence Act before the secondary evidence is led. A party to the lis may choose to file an application which is required to be considered by the trial Court but if any party to the suit has laid foundation of leading of secondary evidence, either in the plaint or in evidence, the

secondary evidence cannot be ousted for consideration only because an application for permission to lead secondary evidence was not filed.

16. The learned counsel for respondent No.1 would submit that

the plea can be raised either in the plaint or during the course of

evidence. Therefore, there is no illegality in the orders under

revision and in allowing respondent No.1 to file the subject

document as part of the record and objections can be taken at the

time of marking of the same.

17. Further, in the order dated 15.04.2021 passed by this Court

in C.R.P.No.3688 of 2016, it is categorically observed that there can

be no objection for receiving the documents obtained under the RTI

Act and the objections could be raised when such documents are

sought to be marked but not at the stage of receiving.