IMPORTANT POINT
Notice to produce document—Whether there exists such document or not cannot be adjudicated at the time of passing orders under Section 66 of Indian Evidence Act.

ORDER

Suraj Govindaraj, J.—The petitioner-husband is before this court seeking for issuance of a writ in the nature of certiorari quashing the impugned order dated 09.04.2018 passed by the Additional Civil Judge and JMFC-II, Karwar, Uttar Kannada in D.V. No.11/2014.

2. Though the Petitioner and Respondent No.1 were represented by their respective advocates before the trial court, they have chosen to represent themselves as parties in person in these proceedings.

3. The prayers sought for by the petitioner-husband in the present writ petition are as under:

3.1. Issue a writ in the nature of certiorari quashing the impugned interim order, dated 09.04.2018, vide Annexure-A, passed by the Addl. Civil Judge and JMFC (II Court), Karwar, Uttar Kannada, in D.V. No.11/2014 and inter alia pass any appropriate orders in the facts and circumstances of the case.

3.2. The respondent No.1 - wife of petitioner and respondent No.2, Protection Officer, Shri. P.H. Naik, (CDPO), acting on her behalf be issued a notice at the earliest, for further hearing and final disposal of this writ petition before this Hon’ble Court.

3.3. The petitioner on the grounds of legal expenses borne by him for a period of four years and is practising as an Advocate, for defamation withstood, claims an amount of Rs.5,00,000/- (Rupees Five Lakhs only) from both Respondents stated above. The same be allowed as they have filed a false and frivolous case causing hurt, injury and disrepute to Petitioner’s profession and have also given mental and physical harassment.

3.4. Cost of writ petition be awarded to the petitioner.

3.5. Grant any other relief, which the Hon’ble High Court deems fit in the peculiar facts and circumstances of the case.

4. The petitioner-husband had also sought for exparte stay of the impugned order, no such stay was granted by this Court.

5. The impugned order is an order of the trial court dated 09.04.2018 on an application under Section 66 of the Indian Evidence Act, 1872. The said Section is hereunder reproduced for easy reference.

“Section 66 in the Indian Evidence Act, 1872

66. Rules as to notice to produce:—Secondary evidence of the contents of the documents referred to in section 65, clause—

(a) shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, [or to his attorney or pleader] such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case:—

Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it:—

(1) when the document to be proved is itself a notice;

(2) when, from the nature of the case, the adverse party must know that he will be required to produce it;

(3) when it appears or is proved that the adverse party has obtained possession of the original by fraud or force;

(4) when the adverse party or his agent has the original in Court;

(5) when the adverse party or his agent has admitted the loss of the document;

(6) when the person in possession of the document is out of reach of, or not subject to, the process of the Court.

6. The respondent-wife had filed a case under Section 12 of the Domestic Violence Act on 19.06.2014 before Civil Judge and JMFC-II, Karwar Uttar Kannada against the petitioner-husband. The respondent-wife sought for marking of the photocopies of the complaint and certain other documents, the same was objected to by the petitioner-husband. Therefore, the respondent-wife filed an application under Section 66 of the Indian Evidence Act seeking for a direction to the Protection Officer to produce the original of the complaint and other documents which were retained by him so as to enable the respondent-wife to mark them in evidence.

7. The petitioner-husband