Achutya Subba Rao vs Mukthipudi Devasahayam

L. Narasimha Reddy, J.—Petitioner filed O.S.No. 6 of 2002 in the Court of the Senior Civil Judge, Darsi, against the respondent for recovery of certain amount on the strength of two promissory notes, dated 27-5-1996 and 28-12-1998. The defendant resisted the suit by filing written statement. He pleaded that the promissory notes relied upon by the petitioner are only renewals of earlier promissory notes, dated 14-8-1993 and 23-12-1995. The trial of the suit commenced.

The respondent issued a notice u/s 66 of the Indian Evidence Act, 1872 (for short "the Act") to the petitioner herein to produce the originals of the promissory notes, dated 14-8-1993 and 23-12-1995. Petitioner replied stating that the said promissory notes have been discharged and consequently delivered to the respondent himself.

After referring to the correspondence that ensued between himself and the petitioner herein, the respondent filed a Xerox copy of the two promissory notes, referred to above. The petitioner raised an objection, through a memo numbered as CFR No. 820, as to the permissibility of receiving secondary evidence. Through its order, dated 30-4-2005, the trial Court overruled the objection. Hence, this civil revision petition.

Sri M.R.S. Srinivas, learned Counsel for the petitioner, submits that the trial Court was under obligation to record a finding as to the possession of the originals of the disputed promissory notes with any of the parties, and it is only after such a finding is recorded that the trial Court ought to have considered the feasibility of permitting the production of secondary evidence. He places reliance upon the observations made by this Court in Trilokchand Jain Vs. Gurrapu Rajamouli and Another, and Amangenti Prameela and Another Vs. P. Venkat Reddy (died) by LRs. and Others, .

Sri E. V. Bhagiratha Rao, learned Counsel for the respondent, on the other hand, submits that the petitioner has taken necessary steps contemplated u/s 66 of the Act, and the trial Court, in turn, followed the procedure prescribed u/s 65 of the Act in permitting secondary evidence and that no exception can be taken to the order under revision.

The respondent got issued a notice, as contemplated u/s 66 of the Act to the petitioner, requiring him to produce the originals of the said promissory notes. The petitioner did not deny the existence of such promissory notes. However, his plea was that they have since been returned to the respondent, on discharge of the debts covered by them.

In the context of permitting the secondary evidence, Section 65 of the Act provides for various circumstances. One of the conditions is that when the original is shown or appears to be in possession or power of any person, who is legally bound to produce it. It hardly needs any emphasis that the promissory note is expected to be in the possession or custody of the lender. In case he has returned it to the borrower, after discharge of the debt, necessary facts in relation thereto are required to be stated. In a given case, even a receipt evidencing the return of the documents may help.

It is true that granting permission to adduce secondary evidence is not a matter of course and before granting such permission, the Court must be satisfied as to the existence of the document as well as its contents. It was so held by this Court in Trilockchand Jain''s case (supra). In fact, that is the requirement under clause (b) of Section 65 of the Act. Where, however, existence of original document is not disputed by the person who is supposed to hold its custody, the burden of the person, who proposes to adduce secondary evidence, gets substantially lightened. On receiving notice u/s 66 of the Act, if a person, in whose custody the original of the document is supposed to be, does not dispute the existence of such document, the way for receiving the secondary evidence virtually gets cleared. So far as the contents of the documents are concerned, the parties can certainly put forward their contentions, once the document becomes part of the record.

In the instant case, the petitioner did not dispute the existence of the promissory notes, but pleaded that they were returned to the respondent. With that, the respondent virtually became entitled to adduce secondary evidence. The question as to whether the endorsement on the back of the promissory note, as contained in the secondary evidence, is true or not, is a matter, which can certainly be gone into, at a later stage. It is well settled that proof and relevance of the document can be adjudicated and considered even at a later stage. Hence, this Court does not find any basis to interfere with the order under revision.

Accordingly, the civil revision petition is dismissed. However, it is made clear that it shall be open to the petitioner to raise an objection as to the proof and relevant of the secondary evidence, as well as its contents, of the same. There shall be no order as to costs.