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Judgment
Since the issue involved in both these Civil Revision
Petitions are one and the same, both were tried together and are
disposed of by this common order.
The CRP.PD.No.634/2017 has been filed against the
fair and final order dated 02.12.2016 passed by the learned I
Additional Subordinate Judge, Coimbatore in I.A.No.879/2016 in
O.S.No.65/2012 C/w O.S.No.747 of 2009 and O.S.No.699/2009.
The CRP.PD.No.680/2017 has been filed against
the fair and final order dated 02.12.2016 passed by the learned I
Additional Subordinate Judge of Coimbatore in rejecting the
memo in I.A.No.254/2016 in O.S.No.747 of 2009 c/w
O.S.Nos.699/2009 and 65/2012.
The short facts of the case are as follows:
(i) The petitioner in CRP PD.No.634 of 2017 is a sub-
lessee in respect of the Schedule-B property under the 2nd
respondent. As per the order passed by the Bombay High Court
on 16.11.2016, Mr.Justice R.G.Vaidyanatha (Retired) has been
appointed as an Administrator of all the assets of the Raj Trust
(Petitioner) including the premises sub-leased to the petitioner.
(ii) It is stated that on 01.04.1992, the 2nd respondent
entered into a Lease Agreement of the suit Schedule ''''A'''' property
with the 1st respondent. The lease is without any limitation. It is
to be noted that the Lease Agreement did not stipulate the
tenancy period. The respondents 2 and 3 continued to be in
possession of the suit property and the rent was regularly
received by the 1st respondent till February, 2009.
(iii) While so, in March 2009, the 1st respondent refused
to accept the payment of rent. In this regard, notices were
exchanged between both the parties. Later on, on 09.06.2009,
the 1st respondent herein issued a Legal Notice stating that the
suit schedule property is in its possession whereas the 2nd
respondent has given a reply notice dated 10.07.2009 that suit
schedule property is in the possession of the 2nd respondent and
the tenancy has not been terminated and in fact, they have been
paying the rent for the suit schedule property till date.
(iv) Therefore, the 2nd respondent has filed a suit in
O.S.No.699/2009 on the file of the I Additional Subordinate
Judge, Coimbatore against the 1st respondent seeking for
permanent injunction restraining the respondent herein from
evicting them without due process of law. In the mean time, the
1st respondent also filed I.A.No.549/2009 seeking the same relief
in which an order of status quo was granted in respect of the suit
schedule property. Subsequently, the said order was set aside by
the appellate court.
(v) The 2nd respondent had also filed I.A.No.550 of 2009
in O.S.No.699 of 2009 for appointment of an Advocate
Commissioner to take inventory of the physical features of the
suit property which was ordered. Based on the Advocate
Commissioner''s Report, O.S.No.747/2009 was filed against the
1st respondent seeking a relief of declaration of their tenancy
rights.
(vi) Subsequently, the petitioner, being a sub-tenant of
the 2nd respondent herein, has filed a suit in O.S.No.65 of 2010
on the file of the District Munsif, Coimbatore and as per the
orders of this Court in Tr.C.M.P.No.214 of 2011, all the three
suits are being tried together jointly before the learned I
Additional Sub-Judge, Coimbatore.
(vii) Whereas, the petitioner in CRP PD No.680 of 2017 is
the lessee in respect of the suit schedule property under the first
respondent and this petitioner sub-let the property in favour of
the petitioner in CRP PD No.634 of 2017.
(viii) The petitioner filed a civil suit in O.S.No.747 of 2009
against the first respondent seeking declaration to establish their
tenancy rights and permanent injunction restricting the first
respondent from trespassing into the suit property and construct
any building.
(ix) It is stated that the petitioner as well as the second
respondent had kept all the documents in their custody at the
suit scheduled property. When the suit was posted for trial, the
petitioner in order to prove its case had to rely upon the lease
agreements, correspondences and other documents.
(x) Since all the documents were destroyed during the
demolition of the suit scheduled property, they have filed the
above application seeking to receive the photocopy of the
documents as secondary evidence in both the suits separately.
Both the interlocutory applications were resisted by the
first respondent herein by contending that it is false to state that
they had clandestinely trespassed into the suit property and
demolished the building. Further, it was stated that the above
said allegations are made by the petitioners only to shirk their
responsibility in producing the originals or the certified copies of
the records, which they seek to rely upon to establish their case.
It is their contention that the petitioners were not at all present in
the suit property. It is also stated that the petitioners could
very well obtain a certified copy from the Arbitral Tribunal and
could have produced the same. Accordingly, they contended that
the documents sought to be produced by the petitioners were not
at all destroyed by them and that they have not made out any
ground for production of secondary evidence.
The Court below, after hearing both sides, had dismissed
both the applications by holding that the documents sought to
be marked has been shown by the plaintiff in the plaint as if they
are in originals and that they have never stated that the
documents listed along with the plaint are xerox copies. It has
further held that the plaintiff has not raised any plea that the
documents that are now sought to be marked are destroyed in
the alleged demolition and that the plaintiff could have very well
got certified copies of all the documents, which they are now
seeking to mark as secondary evidence from the concerned
authorities. It is also held that when the suit was filed in the year
2010, they could have taken steps all these years for getting the
certified copies from the authorities concerned. Without doing
so, the petitioners have come up with the above applications
after a period of six years, which would go to show that only to
drag on the proceedings, the above applications have been filed.
Aggrieved by the said order of dismissal, the above two
civil revision petitions have been preferred.
Heard both sides and perused the materials available on
record.
In I.A.No.879 of 2016 in O.S.No.65 of 2012, the
petitioner has sought permission of the Court to mark the
following documents as secondary evidence.
Exhibit Nos.
Date
Details of documents
A1
01.04.1992
Lease Agreement between M/s.K.Raheja Construction Ltd. and M/s.K.Raheja Development Corporation
A2
03.04.1992
Lease Agreement between M/s.K.Raheja Development Corporation and M/s.K.Raheja Estates and Hotels (P) Ltd.,
A3
03.04.1992
Lease Agreement between M/s.K.Raheja Development Corporation and M/s.Raj Trust
A4
25.09.2009
Arbitration Proceedings
A5
10.05.2010
Certified copy of the order by the Bombay High Court in Notice of Motion No.839 of 2010 in Suit No.2135 of 2001
A6
06.10.2010
Original Power of Attorney in favour of M.Raghava, executed by Neel Raheja
A7
13.07.2010
Order copy by the Madras High Court granting Status quo in CRP No.2562 of 2010 in M.P.No.2010
Whereas in I.A.No.254 of 2016 in O.S.No.747 of 2009, the
following documents were sought to be marked.
Exhibit Nos.
Date
Details of documents
A1
01.04.1992
Lease Agreement between M/s.K.Raheja Construction Ltd. and M/s.K.Raheja Development Corporation
A2
03.04.1992
Lease Agreement between M/s.K.Raheja Development Corporation and M/s.K.Raheja Estates and Hotels (P) Ltd.,
A3
03.04.1992
Lease Agreement between M/s.K.Raheja Development Corporation and M/s.Raj Trust
A4
09.06.2009
Letter by Defendant to M/s.K.Raheja Development corporation
A5
25.05.2009
Cheques (returned by post) by defendant Advocates payment of rent periodically
A6
10.07.2009
Office copy of reply legal notice sent by plaintiff''s counsel to defendant''s counsel
A7
24.09.2009
Covering letter sent by Advocate Mr.Kishore D.Abichandani
A8
25.09.2009
Arbitration Proceedings
A9
20.11.2009
Certified true copy of the resolution passed dated 20.11.2009
A10
08.12.1996
Partnership Deed
A11
Certified copy of the plaint in O.S.No.699 of 2009 on the file of the 1st Additional Subordinate Judge of Coimbatore
A12
Petition and orders in I.A.No.549 of 2009 in O.S.No.699 of 2009, 1st Additional Sub Court, Coimbatore
A13
Petition and order in I.A.No.550 of 2009 in O.S.No.699 of 2009.
It is the contention of the petitioners that the building
was demolished on 19.11.2009 and the debris were removed on
27.11.2009 and therefore, the original documents, which were
kept in the demolished building were destroyed. Therefore, they
have sought for marking of the said document. However, from
the perusal of the papers, it is seen that certain documents have
been notarized by the petitioner on 21.11.2009 through their
lawyer at Mumbai and Coimbatore, which would go to show that
the originals or certified copies of the documents, which are now
sought to be marked as secondary evidence are in the custody of
the petitioners. Further, the documents listed as Exs.A1 to A4 in
I.A.No.879 of 2016 and Exs.A1, A2 and A3 I.A.No.254 of 2016
are the lease agreements entered into between the parties, which
are registered documents; further Exs.A4 to A7 in I.A.No.879 of
2016 and Exs.A8 to A13 in I.A.No.254 of 2016 are only court
proceedings for which, the petitioners could get the certified
copies from the Arbitral Tribunal and the same can be filed as
secondary evidence. Exs.A4 to A7 in I.A.No.254 of 2016 are the
communication between the parties, which they have to prove in
the manner known to law.
The trite proposition of law is that in a civil court, a
mere un-authenticated photocopy of a document cannot be
produced as evidence. Normally a certified copy of the document
can be produced as secondary evidence. But in the present case
the petitioner is seeking to mark the lease agreement, returned
cheques and the communication between the parties as
secondary evidence. The petitioner, at the time of filing the
suit in the year 2010, has not stated in the plaint averments that
they are not holding the originals and only the xerox copies of the
documents are only available with them. It is the case of the
plaintiff that the originals were destroyed while the building was
demolished; however, they had obtained notarization of the
documents, two days before the said demolition took place.
Therefore, the plaintiff cannot be permitted to take advantage of
his own wrong.
The learned Senior counsel appearing for the
respondents would submit that they have got no objection for
marking of the certified copies of the documents, which are court
proceedings, by the petitioners.
Section 63 of the Indian Evidence Act, 1872 specifically
lays down what can be termed as secondary evidence and
Section 65 of the Act lays down the situation in which secondary
evidence can be filed. A photo copy is not admissible in evidence
as it is specifically barred under Section 63 of the Indian Evidence
Act, 1872.
Section 65 of the Indian Evidence Act deals merely
with the foundation that has to be laid for the reception of
secondary evidence. One of the circumstances under which the
Section allows the secondary evidence is when the originals were
destroyed or lost. Therefore, the secondary evidence itself must
be of the nature as described in Section 63 of the Evidence Act. A
true copy of the document will not be admissible under Section
63 unless it is shown that it had been made from or compared
with the original. There must also be sufficient proof of the
search for the original to render the secondary evidence
admissible.
It is a cardinal rule in the law of evidence that the best
available evidence should be brought before the Court. Once an
oral contract is reduced to writing, it is not open to any of the
parties thereto to prove the terms of the contract by referring to
any original oral agreement as Section 91 would stand in the way
and would preclude the party from proving the terms of the
transaction otherwise than by the deed itself.
At this juncture, I would like to refer to the judgment of
the Hon''ble Apex Court reported in ( 2001) 3 SCC 1 (Bipin
Shantilal Panchal Vs. State of Gujarat and another) wherein it is
held that any objection raised while marking the document
pertaining to the insufficiency of stamps, the same shall be
adjudicated immediately. Only when the document is not
registrable the same may be received in evidence subject to its
proof and relevancy. The relevant paragraphs are as follows:
"13. It is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection.
But the fall out of the above practice is this:
Suppose the trial court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the appellate or revisional court, when the same question is re-canvassed, could take a different view on the admissibility of that material in such cases the appellate court would be deprived of the benefit of that evidence, because that was not put on record by the trial court. In such a situation the higher court may have to send the case back to the trial court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realized through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or re-moulded to give way for better substitutes which would help acceleration of trial proceedings.
When so recast, the practice which can be a better substitute is this: 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 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.)
[emphasis supplied]
Applying the aforesaid principles to the case on hand,
the following order is passed:
(i) The documents, which are shown as Exs.A1 to A4 in
I.A.No.879 of 2016 and Exs.A1, A2 and A3 I.A.No.254 of 2016 by
the petitioners are the lease agreements entered into between
the parties, if they are registered documents, the same may be
permitted to be marked as evidence, however, subject to its
proof, admissibility and relevancy. It is also made clear that if
the said documents are insufficiently stamped, the Court below is
directed to take up the said documents and decide the same
immediately, before proceeding further in the matter. Similarly,
Exs.A4 to A7 in I.A.No.254 of 2016, which are the
communications exchanged between the parties, viz., returned
cheques, reply legal notice, covering letter, etc., may also be
permitted to be marked subject to its proof, admissibility and
relevancy.
(ii) Inasmuch as the following documents, being the court
proceedings, the petitioners are permitted to mark the same as
secondary evidence by obtaining certified copies from the
Arbitral Tribunal.
Exs.A5, A6 and A7 in I.A.No.879 of 2016 in O.S.No.65 of 2012
A5
10.05.2010
Certified copy of the order by the Bombay High Court in Notice of Motion No.839 of 2010 in Suit No.2135 of 2001
A6
06.10.2010
Original Power of Attorney in favour of M.Raghava, executed by Neel Raheja
A7
13.07.2010
Order copy by the Madras High Court granting Status quo in CRP No.2562 of 2010 in M.P.No.2010
and Exs.A9 to A13 in I.A.No.254 of 2016 in O.S.No.747 of 2009
A9
20.11.2009
Certified true copy of the resolution passed dated 20.11.2009
A10
08.12.1996
Partnership Deed
A11
Certified copy of the plaint in O.S.No.699 of 2009 on the file of the 1st Additional Subordinate Judge of Coimbatore
A12
Petition and orders in I.A.No.549 of 2009 in O.S.No.699 of 2009, 1st Additional Sub Court, Coimbatore
A13
Petition and order in I.A.No.550 of 2009 in O.S.No.699 of 2009.
With the above observation and direction, both these
civil revision petitions are disposed of. No costs. Consequently,
the connected miscellaneous petitions are closed.