Compliance with Section 66 of the Indian Evidence Act for producing secondary evidence and the admissibility of documents as secondary evidence.

The first defendant in O.S.No.297 of 2010 on the file of the Principal District Munsif Court, Sankarankovil, is the revision petitioner. The first respondent/plaintiff filed the above suit for declaration that the second schedule property is a common pathway belonged to the parties and for injunction. After the commencement of trial when PW.2 was in the box, the first respondent/plaintiff filed an application under Order 7 Rule 14(3) of Code of Civil Procedure, to condone the delay in filing the application and another I.A.No.96 of 2011 under Order 14, Rule 3 CPC to receive the document after condoning the delay and I.A.No.937 of 2011 to mark the document as the secondary evidence and these applications were allowed and aggrieved by the same, these Civil Revision Petitions are filed.

2. Mr.S.Meenakshi Sundaram, learned Counsel for the revision petitioners submitted that the document sought to be marked is an unregistered and un-stamped document and the first respondent produced the xerox copy and therefore the said document cannot be received in evidence and cannot be marked. He further submitted that there was no reference to the document in the plaint filed by the first respondent and though it was mentioned in the list of documents in the plaint, the first respondent has not stated with whom custody of the document was available and in the list of documents filed under Order 7 Rule 14 (1 & 2) he has mentioned the said document as the original and that would also prove that he was having original with him and without producing the original and without giving any explanation for non production of original, he wanted to file the xerox copy and mark the same which was not permissible. He further submitted though a memo was filed by the first respondent/plaintiff asking the revision petitioner to produce the document, as per Order 11 Rule 15 CPC, every party to a suit is entitled to give notice to any other party, to produce such document for the inspection of the party and to permit him to take copies thereof and that can be done before the settlement of issue and in this case trial has commenced and therefore the memo has no legal value and the application cannot be allowed on the ground that the memo was filed directing the revision petitioner to produce the document and thereafter the revision petitioner did not produce the same and therefore the first respondent was entitled to produce the document at a later point of time. He therefore submitted without explaining the reason for the omission to file the document along with the plaint the Court below ought not to have received the document and having regard to the nature of the document, the same cannot be received in evidence.

3. I am unable to accept the contention of the learned Counsel for the revision petitioner. The suit was filed for declaration that the second schedule pathway was a common pathway. No doubt, the document which was sought to be produced by the first respondent at the later point of time was not mentioned in the body of the plaint. But in the plaint while stating the documents filed along with the plaint or to be filed later, the document was mentioned as Document No.3 and the plaintiff/first respondent herein did not categorise the documents under Order 7 Rule 14(1) and Order 7 Rule 14(2) CPC. Under 7 Rule 14(1) the plaintiff has to state the documents which are filed along with the plaint and under Order 7 Rule 14(2) CPC the plaintiffs has to state the documents which are not in his possession and also state in whose possession or power the documents are available. As stated supra in the plaint documents were mentioned and they were not categorized under Order 7 Rule 14(1) and (2) and it was only stated that the documents were filed under Order 7, Rule 14(1) and (2) CPC. Though it was mentioned that the document which was sought to be filed later was original, it is the specific case of the first respondent that the original document was