Telangana High Court
Mr.Thakur Ajay Singh vs Medishetty Ravindra Kumar on 26 July, 2024
*THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
+ CIVIL REVISION PETITION No.1053 OF 2024
% 26--07--2024
# Mr.Thakur Ajay Singh
...Petitioner
$ Medishetty Ravindra Kumar
and others
... Respondents
! Counsel for the petitioner : Sri Dilip Singh Thakur
^Counsel for Respondents : Sri Nadipally Ananda Rao
<Gist :
>Head Note :
? Cases referred
1. 2015 (3) ALT 494 (S.B.)
2. 2019(6) ALT 58 (S.B.)
IN THE HIGH COURT FOR THE STATE OF TELANGANA
HYDERABAD
****
CIVIL REVISION PETITION No.1053 OF 2024
Between:
Mr.Thakur Ajay Singh
...Petitioner
Medishetty Ravindra Kumar
and others
... Respondents
JUDGMENT PRONOUNCED ON: 26.07.2024
2
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? :
yes
2. Whether the copies of judgment may be
Marked to Law Reporters/Journals? :
yes
3. Whether His Lordship wishes to
see the fair copy of the Judgment? :
yes
_______________________________________________
NAMAVARAPU RAJESHWAR RAO, J
3
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
CIVIL REVISION PETITION No.1053 of 2024
ORDER :
This Civil Revision Petition is filed aggrieved by the
order dated 09.10.2023 in I.A.No.335 of 2019 in O.S.No.38
of 2015 passed by the Principal District Judge, Vikarabad
(for short, "the trial court").
2. Heard Sri Dilip Singh Thakur, learned counsel
appearing for the revision petitioner and Sri Nadipally
Ananda Rao, learned counsel appearing for the
respondents.
3. Learned counsel appearing for the revision petitioner
submits that the revision petitioner herein is the plaintiff,
who filed the suit O.S.No.38 of 2015 for specific
performance of the agreement of sale dated 23.03.2015 in
respect of the suit schedule property i.e., two mulgies
bearing Nos.7-4-2 and 7-4-3 total admeasuring 51 sq.
yards situated at Bhadreshwara Chowk X Road, Tandur,
Vikarabad District.
4. Learned counsel appearing for the revision petitioner
further submits that at the time of filing of the suit, the
revision petitioner has filed eight documents in all
including an original notebook (diary) to prove the
payments made by him to the 1st respondent on different
dates, towards sale consideration. The revision petitioner
mentioned the original diary in the body of the plaint and
also at the end of the plaint under the heading 'the list of
documents'.
5. However, when the suit was coming for the chief
examination of the revision petitioner (PW.1) and
documents marking, the said notebook (small diary) was
found missing from the court bundle. In such
circumstances, the revision petitioner has filed I.A.No.335
of 2019 under Section 65(c) of the Indian Evidence Act with
a prayer to receive the photostat copy of the diary (small
notebook) as secondary evidence and to mark the same
through PW.1. However, the trial Court dismissed the said
I.A. on untenable grounds. Aggrieved thereby, the revision
petitioner has filed the present Civil Revision Petition.
6. Learned counsel appearing for the revision petitioner
further submits that once the revision petitioner
categorically pleaded about the said diary in the plaint
itself and mentioned it in the list of documents, the
question of not filing it does not arise. The said diary was
misplaced in the section itself. The trial court had sought
an explanation from the then Senior Assistant through the
official Memorandum dated 11.01.2023 regarding the
missing original diary. However, the explanation was not
considered properly on the grounds that it was given in an
omnibus manner and was not specific. When the
explanation offered by the then Senior Assistant was found
not satisfactory, then the trial Court ought to have ordered
further enquiry into the matter to know the truth. Instead,
the trial Court abruptly came to the conclusion that the
revision petitioner has not filed the said document in the
court.
In support of his contentions, learned counsel
appearing for the revision petitioner relied upon the
judgment of this Court in RAMAKRISHNA
CONSTRUCTIONS AND ANOTHER Vs. SINGARENI
COLLIERIES COMPANY LIMITED 1, wherein this Court
held as follows :-
"15. In the instant case, notwithstanding the notice
issued by the revision petitioners, the respondent did not
produce the letters on the ground that they were not
available with it. It is to be borne in mind that where
notice to produce document as contemplated under
Section 66 of the Evidence Act is given, and there is non-
compliance with the notice, striking of defence cannot be
ordered, but secondary evidence of document can be
permitted to be given. In the normal course, unless some
motive is suggested to the party proposing to adduce
secondary evidence to the effect that he made an
application to adduce secondary evidence on false
grounds, normally he can be permitted to lead secondary
evidence. A bare statement made on affidavit by a party
would be sufficient proof of fact that the document has
been lost or not traced out. There can never be an
absolute proof of fact that the document had in fact been
lost. A statement of the person that the document was
lost and in spite of his best efforts he could not trace out
the document would be sufficient evidence of the fact that
the document had been lost."
7. Learned counsel appearing for the revision petitioner
further relied upon another judgment of this Court in
SMT.KODALI JHANSI RANI Vs. VALASALA VENKATA
RAMANA @ RAMANA (DIED) AND OTHERS 2, wherein this
Court held:-
"In the normal course, unless some motive is suggested
to the party proposing to adduce secondary evidence to
1 2015 (3) ALT 494 (S.B.)
2 2019 (6) ALT 58 (S.B.)
the effect that he made an application to adduce
secondary evidence on false grounds, normally he can be
permitted to lead secondary evidence. A bare statement
made on affidavit by a party would be sufficient proof of
fact that the document has been lost or not traced out.
There can never be an absolute proof of fact that the
document had in fact been lost. A statement of the person
that the document was lost and in spite of his best efforts
he could not trace out the document would be sufficient
evidence of the fact that the document had been
lost........"
8. While arguing the matter, the learned counsel
appearing for the revision petitioner has brought to the
notice of this Court the observations made by the trial
Court at para No.13 of the impugned order, which reads as
under :-
"While so, their contention that the said original diary was
allegedly filed by the petitioner in the court and later it
was got misplaced by him in collusion with the then civil
bench clerk with a malafide intention, cannot be accepted
by this court. It is a matter of common knowledge that a
party who filed a document in support of his contention
himself would get the said document intentionally
misplaced from the record of the court, more particularly in
collusion with the clerk concerned. When the said
document is material to the case of the petitioner, as per
his pleadings to prove the alleged payments made by him
to the respondent No.1 towards part of sale consideration
on different dates and in different amounts, the petitioner
himself cannot be expected to get it misplaced from the
record of the court. This is so because, the alleged
payments made in the said diary would be substantiating
the case of the petitioner in pursuance of the agreement of
sale dated.23-03-2015. Further, it is an undisputed fact
that the petitioner has filed present suit by paying a huge
amount of Rs.22,976/- towards court fees. The petitioner
also would have paid the advocate fee to his counsel for
filing the suit and to proceed with it. When the petitioner
has taken such a risk, the alleged contention of the
respondent Nos. 1 to 3 that himself got misplaced the
original diary of him in collusion with the civil bench clerk
from the record of the court, is not believable."
9. Learned counsel appearing for the petitioner submits
that the trial Court, without considering the submissions
made by the petitioner, erroneously dismissed the I.A.
Therefore, appropriate orders be passed by setting aside the
impugned order dated 09.10.2023 and allow the Civil
Revision Petition.
10. Learned counsel appearing for the respondents filed a
memo dated 26.06.2024 wherein he brought to the notice
of this Court 'Form No.7 - list of documents'. The
document does not show any information regarding the
documents filed, and only the name of Mr. T.Ajay Singh
was mentioned as the plaintiff and the names of Sri
M.Ravindra Kumar and others were shown as defendants.
Further, there appears to be no signature on the same.
11. Learned counsel for the respondents also brought to
the notice of this Court a copy of I.A.No.519 of 2017, which
was filed by the plaintiff/revision petitioner before the trial
court to receive twenty four documents, enclosing the list
of documents in Form No.7. It is observed that in the said
Form No.7, the date of document next to Ex.A-3 Original
Note Book (Plaintiff Diary) is blank.
12. Learned counsel for the respondents brought to the
notice of this Court the observations made by the trial
court at para No.14 of the impugned order, which reads as
follows:-
"The record shows that the petitioner at the stage of trial,
filed his affidavit of chief examination as PW1 on 8-9-2017
along with I.A.No.519 of 2017 under Order 7, Rule 14 (3)
of CPC praying the court to receive 24 documents enclosing
the list of documents (Form No.7) in support of his case. No
counter affidavit being reported thereto, the said petition
was allowed by this court on 7-11-2017. The third
document described therein and in the list of documents is
original note book (plaintiff's diary). The fact remains that
no such original note book was filed by the petitioner along
with the said petition and the list. It is beyond the
comprehension this court as well as any prudent person
that if at all the petitioner had already filed the said
original note book along with plaint itself initially on 7-7-
2015, how he could again file the same on 8-9-2017 before
this court along with the said petition. This itself goes to
show that the petitioner is not correct and truthful in
describing and filing the documents before this court,
either along with the plaint initially or with I.A.No. 519 of
2017 later. There is no explanation from the petitioner for
describing in the list of documents twice as if he is filing
the original note book twice before this court. In such view
of the matter, the memo dated.23-1-2018 filed by him
before this court stating that the original note book
allegedly filed by him before this court along with plaint
was misplaced in the court itself, is incorrect and liable to
be ignored. All the 24 documents described by him in the
list of documents filed along with I.A.No.519 of 2017 were
also reiterated as Exs.A1 to A24 at the bottom of his
affidavit of chief examination, but the fact remains that his
chief examination was recorded on 12-10-2018 before this
court and only Exs.A1 to A22 were marked deleting the
documents described him as Ex.A3 to A4."
13. Learned counsel for the respondents submits that the
trial court, after hearing both sides and after considering
the material available on record, rightly passed the
impugned order, and there are no grounds to interfere with
the same.
14. Perused the records.
15. The trial court observed that if at all the revision
petitioner had already filed the said original note book
along with the plaint itself initially on 07.07.2015; it was
not possible for the revision petitioner to file the same
original note book again on 08.09.2017 before the trial
court while filing I.A.No.519 of 2017. This lacuna itself goes
to show that the revision petitioner is not truthful in
describing the filing of the documents before the trial court.
There is no explanation from the revision petitioner
regarding the List of Documents (Form No.7), which
describes it as if he filed the original notebook twice before
the trial court. The revision petitioner had filed a memo
dated 23.01.2018 before the trial court stating that the
original note book filed by him along with the plaint was
misplaced in the trial court itself. The trial court rejected
the claim of the revision petitioner in view of the
discrepancies in the revision petitioner's claims about the
filing of the said notebook. All 24 documents described by
him in the list of documents filed along with I.A.No.519 of
2017 were also reiterated as Exs.A1 to A24 at the bottom of
his affidavit of chief examination, but when his chief-
examination was recorded on 12.10.2018 before the trial
court, only Exs.A1 to A22 were marked, deleting the
documents described by him as Exs.A3 and A4.
16. This court is of the considered view that the trial
court's observation is convincing, and it had rightly pointed
out the fact that it was not possible for the revision
petitioner to have filed the same original diary (notebook)
twice. There is no explanation offered by the revision
petitioner before the trial court to substantiate his claims
that the said diary (notebook) was filed along with the
plaint. Even if the revision petitioner's version were to be
considered, there is no credible explanation for the said
diary being marked as Ex.A3 subsequently in I.A.No.519 of
2017. Further, the Photostat copy of a specific page of the
said diary filed before the trial Court appears to mention
some dates and amounts, which is not readable, and
further, it reflects only one side of the said page. The
document sought to be presented before the trial court by
the revision petitioner is vague, and the same has not been
presented in totality. Irrespective of whether the contents of
the said document are relevant or not, the revision
petitioner ought to have filed the said document with both
sides being clearly reflected.
17. Learned counsel appearing for the revision petitioner
had contended that the Trial Court erred by not taking into
consideration the Photostat of the diary (notebook) as
secondary evidence, for which he relied upon Section 65(c)
of the Indian Evidence Act, 1872. Section 65(c) reads as
follows:
"65. Cases in which secondary evidence relating to
documents may be given:- Secondary evidence may be
given of the existence, condition or contents of a document
in the following cases :-
(c) when the original has been destroyed or lost, or
when the party offering evidence of its contents cannot,
for any other reason not arising from his own
default or neglect, produce it in reasonable time."
(emphasis supplied)
As such, a plain reading of the above section shows that
clause (c) provides for the production of secondary
evidence, when the original document has been lost or
destroyed for any other reason other than the party's own
neglect. Hence, the photostat copy of the original document
could be presented as secondary evidence if the party is
able to demonstrate that the primary document is not
custody of the party for reasons beyond his own fault or
neglect. In the present case, the revision petitioner's
negligence is plainly visible, since he has been taking
inconsistent pleas about the filing of the original
document.
18. Further, the revision petitioner did not insist for
proper examination of the Senior Assistant of the trial
court regarding the alleged misplacement of the notebook
(diary). The filing of the said original diary itself is doubtful
and there is no clarity in the pleadings made by the
revision petitioner before the trial court. In his affidavit in
I.A.No.335 of 2019 in O.S.No.38 of 2015, the revision
petitioner has failed to mention as to when the Xerox of the
diary was taken, since the original diary is claimed to be
misplaced in the court bundle. It is needless to state that
for adducing secondary evidence under Section 65 of the
Act, a party is required to plead and prove the existence of
the original document and the circumstances as mentioned
in Section 65 of the Act to adduce secondary evidence. In
the case on hand, the revision petitioner failed to establish
that the said original diary existed, since he was
unsuccessful in proving that he had filed the original diary
at the time of the filing of the plaint. When the filing of the
original diary itself is doubtful, the revision petitioner
cannot be permitted to file a Photostat copy of the said
diary by invoking Section 65 of the Evidence Act as an
afterthought.
19. The judgments relied upon by the learned counsel for
the revision petitioner are not helpful to his case. In
RAMAKRISHNA CONSTRUCTIONS (1st supra), this Court
had held that there could never be absolute proof of the
fact that a document had been lost. In such
circumstances, a statement of the person that the
document was lost by way of filing an affidavit is sufficient
to adduce secondary evidence and to consider the same.
Further, in KODALI JHANSI RANI (2nd supra), it was held
by this Court that unless some motive is suggested to the
party proposing to adduce the secondary evidence, a bare
statement made on an affidavit by a party would be
sufficient proof of the fact that the document had in fact
been lost. However, in the present case, the observation of
the trial court raises suspicions about the filing of the
primary document itself. When the existence of the main
document itself is doubtful, the revision petitioner cannot
take the shelter of Section 65(c) to introduce the Photostat
copy of the same as secondary evidence. The revision
petitioner has taken inconsistent stands about the filing of
the notebook (diary), and no convincing explanation has
been offered about the same being marked as Ex.A3 in
I.A.No.519 of 2017, in contrast to the revision petitioner's
plea that the original diary had been filed along with the
plaint itself. Therefore, the judgments stated supra are not
helpful to the revision petitioner.
20. In view of the above facts and circumstances, this
Court is of the considered view that the trial court has
rightly dismissed I.A.No.335 of 2019 in O.S.No.38 of 2015
and there are no grounds to interfere with the impugned
order passed by the trial court. Moreover, the revision
petitioner failed to establish that the impugned order
passed by the trial court suffers from any irregularity or
infirmity. In such circumstances, this Court is not inclined
to interfere with the trial court's findings by exercising its
power under Article 227 of the Constitution of India.
Therefore, the Civil Revision Petition is devoid of merits and
the same is liable to be dismissed.
21. Accordingly, the Civil Revision Petition is dismissed.
No order as to costs.
Pending miscellaneous applications, if any, shall
stand closed.
_____________________________________
NAMAVARAPU RAJESHWAR RAO, J
Date: 26.07.2024
Note:-
L.R.copy to be marked
(B/o)
Prv
