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2012 Supreme(Kar) 962
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
A.S. Pachhapure, J.
Vasanth Madhava, S/o K. Narasimhachar, Aged about 75 years, R/at No. 169, Srinivasangar, Banashankari I Stage, Bangalore-560050 —Appellant
Vs.
E. Sechadri, S/o Late E. Kutti Dorai, Aged about 67 years, R/at No. 351 16th Cross, VII Main Road, V Block, Jayanagar, Bangalore-560041 —Respondent
Writ Petition No. 36203 of 2011
Decided on : 20-04-2012
Advocate appeared:
Mr. H.S. Chandrashekar, for the Appellant
Mr. Sheela S. Rao, for the Respondent
The admissibility of documents as evidence, the circumstances for leading secondary evidence, and the necessity for proving the contents of the original document.
Headnote:
Photocopy - Specific Performance of Contract - Stamp Act 1899, Order XIII Rule 3 and 4 CPC, Section 65 of the Evidence Act - The court discussed the admissibility of a photocopy of a Lease-cum-Sale Agreement in evidence and referred to relevant legal provisions and case law. The court emphasized that mere marking of a document is not proof of its contents and highlighted the circumstances under which secondary evidence of the original document can be led. The court also discussed the relevance of objections to the admissibility of documents and the necessity for proving the contents of the original document.
Fact of the Case:
The petitioner sought specific performance of a Sale Agreement, claiming to have received a photocopy of the Lease-cum-Sale Agreement at the time of the Sale Agreement. The admissibility of the photocopy as evidence was challenged, leading to the present writ petition.
Finding of the Court:
The court held that the mere marking of a document is not proof of its contents and emphasized the circumstances under which secondary evidence of the original document can be led. The court also noted that objections to the admissibility of documents should be considered and highlighted the necessity for proving the contents of the original document.
Issues: Admissibility of photocopy as evidence, relevance of objections to admissibility, and the necessity for proving the contents of the original document.
Ratio Decidendi: Mere marking of a document is not proof of its contents. The circumstances under which secondary evidence of the original document can be led should be considered. Objections to the admissibility of documents should be addressed, and the contents of the original document must be proved.
Final Decision: The petition was disposed of, with the court emphasizing the necessity for proving the contents of the original document and noting that the evidence could be discarded at the time of final hearing.
A.S. Pachhapure J.—The petitioner instituted a suit in O.S. No. 1083/2003, seeking a relief of specific performance of contract of the Sale dated 29.12.1989 said to have been executed by the respondent herein. When, the petitioner was being examined as P.W.1, during the cross-examination on 27.08.2011, he admitted in the evidence that at the time of the Agreement of Sale, he was given a photocopy of the Lease-cum-Sale Agreement and a photocopy was shown to this witness and he admitted that a similar photocopy which was shown was given to him at the time of the Lease Agreement. At that time, the plaintiff's counsel objected to admit the document in evidence, it is thereafter, the witness went through the said photocopy and admitted that the photocopy of the document given to him was similar to the document shown. As marking of the document was objected, the said objections were over-ruled and it was marked as Ex. D2. It is this portion in the evidence, which has been challenged in the present writ petition as inadmissible evidence and the petitioner had sought for quashing the said portion.
2. Heard the learned counsel for both the parties.
3. As could be gathered from the facts, the respondent is holding a site allotted by the Bangalore Development Authority under a Lease-cum-Sale Agreement. The petitioner agreed to purchase the said site for a consideration of Rs. 98,000-00. He paid Rs. 90,000-00, took possession of the suit property and put up construction over the said site. At the time of execution of the Sale Agreement, the petitioner had received a photocopy of the Lease-cum-Sale Agreement So, while the petitioner was under cross-examination, one photocopy was shown to him and the petitioner admitted that it is similar to the photocopy, which was given to him at the time of execution of the Sale Agreement So, as the witness admitted receipt of the photocopy of the Lease-cum-Sale Agreement, the said document was marked.
4. The learned counsel for the petitioner has placed reliance on the decision reported in Jupudi Kesava Rao Vs. Pulavarthi Venkata Subbarao and Others, AIR 1971 SC 1070, the Apex Court held that the definition of "instrument" provided under the Stamp Act 1899 does not cover copy of the document for the purpose of Stamp Act. I do not think any relevance of the principle laid-down to the dispute in question.
He also placed reliance on the decision reported In ILR 2011 Kar 1 [Shalimar Chemical Works Limited Vs. Surendra Oil and Dal Mills (Refineries) and Others]. The Apex Court took into consideration of the provisions of Order XIII Rule 3 and 4 CPC., wherein a photocopy of the registration certificate was even marked in the evidence and it was objected to by the party, the Court provisionally admitted the photocopy subject to the question of admissibility The Apex Court held that the photocopy should have been rejected in the beginning itself.
He also placed reliance on the decision of the High Court of Andhra Pradesh, reported in AIR 2011 [NOC] 35 [chalasani Satyanarayana Murthy Vs. Chalasani Rama Koteswara Rao & Ors.] the High Court referred to the provisions of Section 65 of the Evidence Act held that no true copy or private copy of any public document is admissible as secondary evidence.
Reliance was also placed on the decision reported in 1997 Rajasthan 211 [Harshvardhan Singh Vs. Ranveer Singhn and others] held that unstamped and unregistered document of Family Settlement creating right in the property, the original of which was not produced before the Court, allowing the copy of the alleged Family Settlement in evidence was held to be illegal.
Finally, he placed reliance on the decision of the Apex Court, reported in 2011 SC 1492, wherein the Apex Court taking into consideration the provisions of Section 65 of the Evidence Act held:
In a case where original documents are not produced at any time, nor, any factual foundation has been led for giving secondary evidence, it is not permissible for the Court t
