Point of Law: when the whole purpose is to contradict a witness, it becomes unnecessary to expatiate that the element of surprise is crucial. Axiomatically, it will be incongruous to even suggest that a document or statement used for such must be produced earlier, since the witness certainly will then modulate his response to it by pre-preparation. The very object of S.145 the Indian Evidence Act would be lost by it.

JUDGMENT :

Orders in I.A.Nos.9/2020, 11/2020 and 12/2020 in O.S.No.568/2013 pending before the Principal Sub Judge, Thrissur are under challenge in O.P.(C) No.173/2022 filed by the plaintiff in the above suit.

2. Orders passed on the same day in I.A.Nos.10/2020 and 13/2020 in the same suit are under challenge in O.P.(C) No.174/2022 filed by the plaintiff.

3. The crux of the dispute in O.P.(C) No.173/2022 is that while cross-examining PW3, the brother of the parties in this case, a photo copy of an alleged agreement executed between the petitioner and the respondent got marked as Ext.B1, when PW3 admitted, when confronted the same.

4. It is contended by the learned counsel for the petitioner that Ext.B1 was marked in evidence, despite strong objection raised by the learned counsel for the plaintiff. Copy of the deposition of PW3 is produced as Ext.P4 in this case. Initially, PW1 was cross-examined and, thereafter, he was re-examined. Then, PW3 was further cross-examined with permission of the court. Then, photocopy of the agreement dated 23.05.2021 shown to the witness and asked whether he had put signature in the copy of the agreement as a witness? He readily admitted without any hesitation and accordingly the same got marked as Ext.B1. Nothing available in the deposition of PW3 to the effect that the learned counsel for the plaintiff opposed marking of the document or PW3 shown any hesitation to admit his signature in the so called agreement marked as Ext.B1. During re examination, it was suggested that Ext.B1 is an agreement to sell the property of the plaintiff. That suggestion was admitted by PW3. When a leading question was asked as to whether PW3 did know such an agreement, PW3 answered in the negative.

5. Going by the deposition of PW3, it could be gathered that Ext.B1 was marked without any objection, as PW3 admitted his signature in Ext.B1 as a witness to the same, when confronting the document while cross-examining him.

6. It was thereafter, I.A.No.9/2020 was filed to set aside the order passed by marking Ext.B1. The other side seriously opposed the contention. The court below after referring the evidence given by the PW3 in detail and dismissed the same. Apart from that, I.A. No.11/2020 also filed to call for the original of Ext.B1. The learned Sub Judge dismissed the said application also, in view of the specific contention raised by the respondent in the counter filed by the respondent stating that the original of the said agreement had been in possession of the plaintiff/petitioner herein. At this juncture, I.A.No.12/2020 was filed with prayer to send original of Ext.B1 document for handwriting expert. Since it was contended by the respondent that the original itself is in possession of the plaintiff/petitioner herein, the said application also was dismissed.

7. Here, as I have already pointed out during cross-examination of PW3, who is none other the brother of the plaintiff as well as the defendant, a photocopy of another agreement bearing the signature of PW3 was shown and PW3 admitted it as one executed between the plaintiff and defendant and he put signature in the same as a witness. No objections seen raised in marking the document and the same was marked as Ext.B1. Now, the attempt of the petitioner is to eschew Ext.B1 from evidence. In this connection, the learned counsel for the petitioner placed three decisions. In the decision in Smt.J.Yashoda v. Smt.K.Shobha Rani [2007 KHC 3494] in order to enable a party to produce secondary evidence, it is necessary for the party to prove existence and execution of the original document. Under Section 64 of the Evidence Act, documents are to be provided by primary evidence. Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said Section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document ca