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2013 Supreme(Mad) 93
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
G. RAJASURIA, J.
M. Murugesan
Versus
R. Rameswari & Another
C.R.P. (PD)(MD). Nos. 1486 & 1487 of 2012 & M.P (MD). Nos. 2 & 3 of 2012
Decided On : 04-01-2013
For the Petitioner:R. Vijayakumar, Advocate.
For the Respondents:R1, M.P. Senthil, R2, A.W. D. Thilak, Advocates.
Headnote:A. CIVIL RULES OF PRACTICE - Rule 74 and INDIAN EVIDENCE ACT, 1972 - Section 63 - Petition of plaintiff to re-open evidence and to send for documents from court of Magistrate, allowed by trial court - CRP against order under Article 227 - Held both R.74 of Civil Rules of Practice and S.63 of Evidence Act make it clear that best evidence has to be produced before the Court, but the law itself enables a Court to place reliance on a certified copy without summoning the original from one other Court. Here, admittedly, the opinion of the expert and the original documents concerned are in the criminal Court - If those original documents are summoried by the civil Court from the criminal Court, then the first defendant who is facing the criminal case as accused, would face hurdles in the disposal of the case and consequently, the prolongation of the trial, and hence not necessary. (Paras 11 and 12)
B. EVIDENCE - Documents - Marking of original - When can be insisted - Held, When the law itself envisages that a certified copy could be marked, plaintiff need not insist upon the production of the original documents. If at all, any more certified copies of the original documents concerned should be obtained, the very plaintiff is at liberty to obtain those documents and also file them before the civil Court and after getting summoned the hand-writing expert, he could mark the relevant documents through him and if the expert raises any doubt about the certified copy containing his opinion, then the matter would be entirely different. The civil Court cannot doubt the certified copy issued by a criminal Court as of now - Impugned order set aside with direction. (Para 13)
Result : CRPs ordered accordingly.
1. C.R.P (PD)(MD)No.1486 of 2012 has been filed to get set aside the order dated 21.06.2012 passed in I.A.No.1196 of 2011 in O.S.No.60 of 2004 on the file of the Sub Court, Tuticorin.
2. C.R.P(PD)(MD)No.1487 of 2012 has been filed to get set aside the order dated 21.06.2012 passed in I.A.No.1197 of 2011 in O.S.No.60 of 2004 on the file of the Sub Court, Tuticorin.
3. Heard both sides.
4. A resume of facts absolutely necessary and germane for the disposal of both the Civil Revision Petitions would run thus:
The first respondent/plaintiff filed the suit seeking declaration and partition. Pending trial, I.A.Nos.1196 and 1197 of 2011 were filed by the first respondent/plaintiff for reopening the evidence on his side and to send for the documents from the Court of Judicial Magistrate No.I, Tuticorin. The lower Court allowed both the applications.
5. Being aggrieved by and dissatisfied with the same, both the Civil Revision Petitions have been filed on various grounds.
6. The learned Counsel for the revision petitioner/first defendant placing reliance on the grounds of revision, would put forth and set forth his arguments thus:
The certified copy of the expert opinion is already available with the Court as the plaintiff himself filed it in Court in order to buttress and fortify her alleged plea of forgery committed by the revision petitioner/first defendant in executing the sale deed dated 30.04.1991. The law is clear on the point that a certified copy of a document could rightly be filed. In the event of the expert being summoned by the plaintiff and examined, the said certified copy could be marked through him and there is no necessity under the law that the original opinion given by the expert, now available with the criminal Court in connection with the criminal case, should be summoned for the purpose of getting that original marked and thereafter, to be replaced by a certified cop of it. As such, the learned Counsel for the revision petitioner/first defendant would pray for setting aside the orders passed by the lower Court in this regard.
7. Per contra, the learned Counsel for the first respondent/plaintiff by citing the decision of the Honourable Apex Court in Lakshmi and another v. Chinnammal @ Rayyammal and others reported in (2009) 4 MLJ 1040 (SC), would pyramid his arguments, which could succinctly and briefly be set out thus:
Trite, the proposition of law is that the original if available, should be produced before the Court and the secondary evidence could be adduced only in the absence of the original. Since the very original documents are available in the criminal Court, there is no embargo for the Court to send for the same. No doubt, the certified copy of the expert opinion was filed by the plaintiff, but at a later date, there should not be any objection for marking such documents and in view of the same and to be on the safer side, the plaintiff took steps and the lower Court also correctly ordered such summoning of the documents, warranting no interference in revision.
8. The point for consideration is as to whether the lower Court was justified in sending for the documents from the criminal Court?
9. I would like to call up and recollect Rule 74 of the Civil Rules of Practice and Section 63 of the Indian Evidence Act, which are extracted hereunder for ready reference:
The Point: Rule 74 of the Civil Rules of Practice:
"74. Production of records in the custody of a court.-(1) An application for the production of records in the custody of a court, shall specify the particular documents required to be produced. Unless it is made to appear to the court that the production of the original documents is necessary, the party shall be required to obtain and file copies thereof and the original shall not be send for. If the court dispenses with the affidavit mentioned in rule 10(2) of Order XIII of the Code it shall record in writing the reasons for so doing.
(2) When a court finds it necessary to require
