IMPORTANT POINT
Secondary evidence – In order to produce secondary evidence, foundational evidence for the same has to be led by party who seeks admission of secondary evidence.

JUDGMENT

Krushna Ram Mohapatra, J.—This matter is taken up by virtual/physical mode.

2. Legality and sustainability of order dated 16th May, 2022 (Annexure-7) passed in CS No.2116 of 2016 is in question in this CMP, whereby learned Civil Judge (Senior Division), Bhubaneswar rejected an application filed by Defendant Nos.1 and 4 (Petitioners herein) filed with a prayer to unmark and expunge Exts.2, 3, 5, 6, 7 and 8 marked on behalf of Plaintiffs/Opposite Party Nos.1 and 2.

3. Short narration of facts necessary for proper adjudication of the case are that CS No.2116 of 2016 has been filed for allotment of 1/3rd share in favour of the Plaintiffs, declaration of registered gift deed dated 21st November, 2011 as void and no way affects the right, title and interest and possession of the Plaintiffs and Defendant Nos. 5 to 8 as well as for permanent injunction. Along with other documents, PW-1 while leading evidence, exhibited documents, i.e., Exts. 2, 3, 5, 6, 7 and 8, which were marked with objection raised by Defendant Nos. 1 and 4 (present Petitioners). Subsequently, the Petitioners filed an application to unmark and expunge the aforesaid exhibits. The said petition being rejected vide Order under Annexure-7, is assailed in this CMP.

4. Mr. Dash, learned counsel for the Petitioners assailed the order on the ground that Exts. 2, 3, 5, 6, 7 and 8 are secondary evidence being certified copies of registered sale deeds, mortgage deeds as well as information sheet showing correlation of Settlement and Hal plots. It is his submission that no secondary evidence is admissible without laying foundation for producing the same. The Plaintiffs before exhibiting the aforesaid documents in evidence were required to lay foundation for leading such secondary evidence as required under Section 65 of the Evidence Act, 1872. That having not been done, the aforesaid exhibits are not admissible in evidence and are required to be expunged and unmarked. It is his submission that Order XIII Rule 3 CPC clearly envisages that the Court in its discretion at any stage of the suit can reject any document which it considers irrelevant or otherwise inadmissible, by recording grounds of said rejection. Thus, the Court is not powerless to reject/expunge a document at any stage of the suit, which is inadmissible in evidence. Learned trial Court, while adjudicating the petition failed to appreciate the same and rejected the petition on the ground that there is no provision under CPC to unmark any document, which has already been marked as exhibit.

4.1 It is further submitted that the other ground of rejection was that since the documents, as aforesaid, have been marked with objection, admissibility of the same or otherwise can be considered and discussed in the judgment itself taking into consideration the arguments advanced and materials on record. It is his submission that such a finding is not sustainable in view of the settled position of law that no secondary evidence can be admitted without leading foundational evidence for the same. In support of his submission, he relied upon the decision in the case of Rakesh Mohindra Vs. Anita Beri and others, reported in 2016 (I) OLR (SC) 277, wherein, the Hon’ble Supreme Court at Paragraph-23 discussed the ratio of M. Chandra Vs. M. Thangamuthu and another, reported in (2010) 9 SCC 712 and at Paragraph-47 held as under:—

“47. We do not agree with the reasoning of the High Court. It is true that a party who wishes to rely upon the contents of a document must adduce primary evidence of the contents, and only in the exceptional cases will secondary evidence be admissible. However, if secondary evidence is admissible, it may be adduced in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in another form. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It shou