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HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD
M.S.RAMACHANDRA RAO, J.
Abdul Rafi @ Abdul Rawoof, S/o. Abdul Rahman – Petitioner
Versus
Venkataiah, died by L.Rs. and others - Respondents
Civil Revision Petition Nos.457 and 604 of 2019
Decided On : 19-06-2019
Civil Procedure Code, 1908 – Order XIII – Rule 3 & 4 – Evidence Act, 1872 – Section 66 – Seeking to mark photocopy of an agreement of sale allegedly executed by petitioner contending that prior to execution of registered sale deed in his favour there was agreement of sale also executed by petitioner mentioning correct ‘Sy.No.622’ for subject land; that original of said agreement of sale was with petitioner; and so he may be permitted to file photocopy of same also alleged that he issued notice to petitioner to produce original of agreement of sale and photocopy of said agreement of sale may be received as secondary evidence – Held, Petitioner had opposed receipt of photo copy of agreement of sale in his counter and so without deciding it, Court could not have marked it subject to objection that document not fulfill conditions under Section 66 of Act, 1872 and also as C.R.P – Application for de-exhibiting Ex.A5 agreement of sale was rightly filed by petitioner and Court below erred in dismissing it because objection to receipt of said document was raised by petitioner and without deciding it – Court proceeded to receive and admit it in evidence with endorsement mentioned in para 22 above, which it ought not to have done – Civil Revision Petition allowed (Paras: 29,38 & 39)
Facts of the case:
Seeking to mark photocopy of an agreement of sale allegedly executed by petitioner contending that prior to execution of registered sale deed in his favour there was agreement of sale also executed by petitioner mentioning correct ‘Sy.No.622’ for subject land; that original of said agreement of sale was with petitioner; and so he may be permitted to file photocopy of same also alleged that he issued notice to petitioner to produce original of agreement of sale and photocopy of said agreement of sale may be received as secondary evidence
Findings of the court:
Petitioner had opposed receipt of photo copy of agreement of sale in his counter and so without deciding it, Court could not have marked it subject to objection that document not fulfill conditions under Section 66 of Act, 1872 and also as C.R.P – Application for de-exhibiting Ex.A5 agreement of sale was rightly filed by petitioner and Court below erred in dismissing it because objection to receipt of said document was raised by petitioner and without deciding it – Court proceeded to receive and admit it in evidence with endorsement mentioned in para 22 above, which it ought not to have done
Result: Civil Revision Petition allowed
The legal document discusses the admissibility of a photocopy of an agreement of sale in a civil case. The court emphasized that objections to the receipt of such evidence must be raised at the appropriate stage and must be decided before the document is marked as an exhibit. In this case, the petitioner had raised objections to the admissibility of the photocopy, but the court below admitted it without resolving these objections, which was a procedural error.
The court clarified that under the relevant procedural rules, objections regarding the relevance or admissibility of documents should be considered and decided prior to marking the document as evidence. Since the objections were not addressed before the document was admitted, the subsequent marking and reliance on the photocopy were improper.
Furthermore, the court highlighted that the objections to the document's admissibility, especially when the authenticity or existence of the original is disputed, need to be established at the time of evidence submission. Failing to do so and proceeding to admit the photocopy without a proper ruling on the objections constitutes a breach of procedural fairness.
Based on these principles, the court found that the lower court erred in admitting the photocopy of the agreement of sale as evidence without first deciding on the objections raised by the petitioner. Consequently, the order permitting the photocopy to be received as evidence was set aside, and any evidence recorded after the improper admission was to be excluded. The evidence must be re-recorded afresh, excluding the improperly admitted document.
ORDER :
These two Revisions arise between the same parties out of the same suit and so they are being disposed of by this common order.
2. Petitioner is defendant in O.S.No.106 of 2008 on the file of the Junior Civil Judge at Narayanpet.
3. Respondent filed the suit against petitioner for recovery of possession of the suit schedule property, rectification of registered sale deed dt.03-08-2004 by deleting the word/figures ‘Sy.No.335’ and substituting the word/figures as ‘Sy.No.622’ therein. His plea is that in the regd. sale deed executed in his favor by the petitioner, the ‘Sy.No.622’ had to be mentioned and not ‘Sy.No.335’.
4. Written statement was filed by petitioner.
C.R.P.No.604 of 2019
5. I.A.No.92 of 2018 was filed by respondent seeking to mark photocopy of an agreement of sale dt.23-06-2004 allegedly executed by petitioner contending that prior to the execution of the registered sale deed dt.03-08-2004 in his favour (wherein survey number was incorrectly mentioned), there was an agreement of sale also executed by petitioner on 23-06-2004 mentioning the correct ‘Sy.No.622’ for the subject land; that the original of the said agreement of sale was with the petitioner; and so he may be permitted to file photocopy of the same. He also alleged that he issued a notice to the petitioner to produce the original of agreement of sale and so the photocopy of the said agreement of sale may be received as secondary evidence.
6. In the written statement in para-3, petitioner had clearly denied that he had entered into any agreement of sale with the respondent. Petitioner also filed a counter-affidavit in the said I.A opposing the said application stating that he did not take back the original agreement of sale dt.23-06-2004. He also pointed out that the respondent did not plead in the plaint about the agreement of sale dt.23-06-2004 being taken back by petitioner and only in order to get wrongful gain he has falsely claimed that the original agreement of sale was taken back by the petitioner.
7. By order dt.10-04-2018, the Court below allowed the said application. It held that though petitioner had denied the said agreement of sale having been entered into prior to the execution of the registered sale deed on 03-08-2004 in favour of respondent, since the respondent mentioned about its existence, non-filing of the photocopy of the agreement of sale at the time of filing of the suit is not by itself a bar to the respondent to rely on the said document. It also recorded that even if respondent did not lay any foundation for reception of secondary evidence while preparing the plaint, since he had mentioned about the agreement of sale dt.23-06-2004, he is entitled to adduce secondary evidence of the same. It noted that respondent had issued notice u/Sec.66 of the Evidence Act, 1872 on 02-04-2018 at the time of filing of said I.A. and sufficient time was not given to the petitioner to answer the notice and yet, the respondent can be allowed to produce secondary evidence of the photocopy of the agreement of sale.
8. Assailing the same, the C.R.P No.604 of 2019.
9. Counsel for the petitioner contended that when the existence and execution of the said agreement of sale was denied by the petitioner, and when the respondent did not lay any foundation for marking photocopy/secondary evidence of the said document, the Court below erred in permitting him to file it.
10. Counsel for the respondent refuted the above conditions and supported the order passed by the Court below. He contended that the said document was already admitted in evidence and at this stage, after oral evidence was also recorded regarding it, the order in the I.A cannot be set aside.
11. I have noted the contentions of the parties.
12. In J.Yashoda Vs. K.Shobha Rani, (2007) 5 SCC 730 the Supreme Court held that secondary evidence, as a general rule, is admissible only in the absence of primary evidence; in order to enable a party to produce secondary evidence, it is necessary for the party t
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