The court affirmed that reopening evidence to allow the introduction of secondary evidence is permissible when original documents are unavailable, provided the procedural requirements are met.

ORDER :

S.R. KRISHNA KUMAR, J.

This petition by defendant Nos.2 and 3 in O.S.No.32/2010 on the file of the Prl. Civil Judge & JMFC, Hoskote, is directed against the impugned common order passed on I.As. by the Trial Court allowing the applications filed by the respondents – plaintiffs to reopen the evidence of the plaintiff and by recalling PW1 and for permission to mark Photostat copy of the Edurukararupatra / re- conveyance deed as secondary evidence in support of their respective claim.

2. Heard learned counsel for the petitioners and learned counsel for the caveator – respondent No.1 and perused the material on record.

3. A perusal of the material on record will indicate that respondent Nos.1 and 2 – plaintiffs instituted the aforesaid suit against the petitioners – defendant Nos.2 and 3 and other defendants for permanent injunction and other reliefs in relation to the suit schedule immovable property. The said suit is being contested by the defendants. The plaintiffs having adduced evidence, the matter was posted for evidence of defendants and at the stage of cross-examination of PW1, plaintiffs filed three applications viz.,. (i) Application to reopen the evidence of the plaintiff (ii) Application to recall PW1 and permit the plaintiff to mark Photostat copy of the Edurukararupatra / re-conveyance deed and (iii) Application under Section 66 of the Indian Evidence Act for permission to permit the plaintiff to produce Photostat copy of the Edurukararupatra / re-conveyance deed as secondary evidence.

4. The said applications having been opposed by the petitioners – defendant Nos.2 and 3, the Trial Court proceeded to pass the impugned common order allowing all the three applications, aggrieved by which the petitioners are before this Court by way of the present petition. The impugned common order passed by the Trial Court is as under:

“COMMON ORDERS ON APPLICATION FILED UNDER SECTION 151 OF THE CODE OF CIVIL 13 to PROCEDURE, 1908 AND APPLICATION UNDER ORDER XVIII RULE 17 OF THE CODE a OF CIVIL PROCEDURE, 1908 AND 666)02 APPLICATION UNDER SECTION 63B OF THE INDIAN EVIDENCE ACT, 1872 READ WITH SECTION 151 OF THE CODE OF CIVIL PROCEDURE, 1908 Plaintiffs have filed the application under Section 151 of the Code of Civil Procedure, 1908 (Hereinafter referred to as C.P.C., for brevity) seeking to re-open the evidence of the plaintiff.

Plaintiffs have filed the application under Order XVIII Rule 17 of CPC seeking to recall PW.1 and permit them to mark photocopy of Edurukararupatra / re-conveyance deed.

Plaintiffs have filed the application under Section 63(B) of the Indian Evidence Act, 1872 (Hereinafter referred to as 'IE Act’, for brevity) seeking to permit him to produce photocopy of Edurukararupatra/re-conveyance deed as secondary evidence.

2. It is averred in the affidavit annexed to the applications that in the year 2004 the plaintiffs approached the defendant No.1 and availed a hand loan of Rs.1,00,000/-. At the time of the advancement of the loan amount, defendant No.1 insisted that the plaintiffs execute a sale deed for security purposes and defendant No.1 promised to reconvey the property by executing an re- conveyance deed after the repayment of the said loan. As such, the plaintiffs executed the sale deed instead of a mortgage deed in favour of defendant No.1 and in turn, defendant No.1 executed Edaru Kararu Patra on the same day. Subsequently, defendant No.1 retained all original documents with him. Thereafter, the plaintiffs repaid the entire loan amount to defendant No.1. Despite the repayment of the loan amount, defendant No.1 failed to execute a re-conveyance deed. The original of Edaru Kararu Patra is not with the custody of the plaintiffs and same is in the custody of the defendant No. 1. Now, defendant No.1 is denying the custody of th