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2002 Supreme(Mad) 1099
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE K.GNANAPRAKASAM
S.Sathyamoorthy - Appellant
Versus
S.Gurumoorthy - Respondents
CRP.PD.NO.3676/2001 & CMP.No.19586/2001
Decided On : 30 September 2002
Mere reception and marking of documents does not absolve the party from proving their genuineness and validity.
Headnote:
Reception of Documents - Civil Procedure - Order 13 Rule 2 CPC - Section 63(2), 65(a), 66 of the Evidence Act - Section 66(2) proviso - D.Sarasu Vs. Jayalakshmi and 2 others (2001-2-LW-255)
Fact of the Case:
The 1st defendant filed an application for reception of xerox copies of documents related to repairs of ancestral properties in a partition suit. The plaintiff denied possession of the original documents, leading to a dispute over admissibility.
Finding of the Court:
The court allowed the civil revision petition, stating that the documents should be received in evidence, subject to proof and relevancy, and the plaintiff could challenge their genuineness.
Issues: Dispute over admissibility of xerox copies of documents in a partition suit.
Ratio Decidendi: Mere reception and marking of documents does not amount to proof, and the party relying on the documents has the burden to prove their genuineness and validity.
Final Decision: The civil revision petition was allowed, and no costs were imposed. The connected CMP was closed.
1.The revision petitioner is the 1st defendant in OS.No.39 of 1999, on the file of the Subordinate Judge, Tiruvannamalai.
2.The petitioner has filed an application under Order 13 Rule 2 CPC for reception of certain documents and the same was disallowed by order dated 11.10.2001. Aggrieved by the same, the 1st defendant has preferred this civil revision petition.
3.The respondent/plaintiff filed the suit for partition, claiming 9/48th share in the suit properties and for other reliefs.
4.The 1st defendant alone has filed a written statement, wherein, he has stated that the suit properties are the ancestral properties of Subramaniya Iyer and the mother of the parties died on 6.10.1996, leaving behind her, the plaintiff and the defendants. It is further stated that the defendant completely repaired the entire building, by spending about Rs.3,00,000/- and he was also writing letters to the plaintiff about the progress of the repairs and was also notifying the amounts that were spent by him through letters. It is further stated that those letters are with the plaintiff and if he produces them, they will reveal how hard it was for the 1st defendant to repair that old building and that when there was a meeting of all the parties in the end of 1988, the defendant produced all the vouchers and receipts for the perusal of the plaintiff and others and the defendant was also maintaining a day-to-day account regarding the repairs and all the parties concerned have also perused the same. It is further stated that they have agreed, go through the accounts and day-to-day accounts maintained by the defendant to fix the shares of amount by each parties to be paid to this defendant and the plaintiff took away the vouchers, receipts and the account book with him to Mumbai and all of them are only with him.
5.As the plaintiff has not come forward to file those documents and the originals are with the plaintiff, the defendant has filed an application for reception of xerox copies of those documents. The defendant, in the affidavit filed in support of the petition, has stated that the original receipts are with the plaintiff and therefore, he is filing xerox copies and sought the permission of the court to receive and mark the same.
6.The plaintiff filed a counter, wherein, he has stated that the documents sought to be filed by the 1st defendant are inadmissible in evidence and they are not genuine documents. Photocopies of the bills cannot be admitted as secondary evidence and there is no proof that the originals are with the plaintiff.
7.The court below was of the view that as the plaintiff denied the possession of the original documents, the xerox copies filed by the petitioner/1st defendant are inadmissible, as the same could not be compared with the originals. Aggrieved by the same, the 1st defendant has preferred this civil revision petition.
8.The learned advocate for the revision petitioner has submitted that in the written statement itself, he made it very clear that the original documents were placed for the perusal of all the parties concerned, when all of them met at Madras in the end of 1988 in a family function and all of them have seen those original documents and as a matter of fact, they have also agreed that they would verify and settle the amounts. It is further submitted that the plaintiff had taken all the originals of the vouchers, receipts and account books for verification and only in the said circumstances, the original documents are not available and the petitioner is entitled to let in secondary evidence. In the absence of the originals, the petitioner is entitled to let in secondary evidence i.e. xerox copies of the originals, as contemplated under Section 63(2) of the Evidence Act.
9.He also relied upon Section 65(a) of the Evidence Act, which states, "when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of re
