IMPORTANT POINT
A party must provide credible evidence of a document's loss to admit secondary evidence under Section 65(c) of the Indian Evidence Act, and inconsistencies in claims can undermine this request.

ORDER :

1. This Civil Revision Petition is filed aggrieved by the order dated 09.10.2023 in I.A.No. 335 of 2019 in O.S.No. 38 of 2015 passed by the Principal District Judge, Vikarabad (for short “the trial court”).

2. Heard Sri Dilip Singh Thakur, learned counsel appearing for the revision petitioner and Sri Nadipally Ananda Rao, learned counsel appearing for the respondents.

3. Learned counsel appearing for the revision petitioner submits that the revision petitioner herein is the plaintiff, who filed the suit O.S.No. 38 of 2015 for specific performance of the agreement of sale dated 23.03.2015 in respect of the suit schedule property i.e., two mulgies bearing Nos.7-4-2 and 7-4-3 total admeasuring 51 sq. yards situated at Bhadreshwara Chowk X Road, Tandur, Vikarabad District.

4. Learned counsel appearing for the revision petitioner further submits that at the time of filing of the suit, the revision petitioner has filed eight documents in all including an original notebook (diary) to prove the payments made by him to the 1st respondent on different dates, towards sale consideration. The revision petitioner mentioned the original diary in the body of the plaint and also at the end of the plaint under the heading ‘the list of documents’.

5. However, when the suit was coming for the chief examination of the revision petitioner (PW-1) and documents marking, the said notebook (small diary) was found missing from the court bundle. In such circumstances, the revision petitioner has filed I.A.No. 335 of 2019 under Section 65(c) of the Indian Evidence Act with a prayer to receive the photostat copy of the diary (small notebook) as secondary evidence and to mark the same through PW-1. However, the trial Court dismissed the said I.A. on untenable grounds. Aggrieved thereby, the revision petitioner has filed the present Civil Revision Petition.

6. Learned counsel appearing for the revision petitioner further submits that once the revision petitioner categorically pleaded about the said diary in the plaint itself and mentioned it in the list of documents, the question of not filing it does not arise. The said diary was misplaced in the section itself. The trial court had sought an explanation from the then Senior Assistant through the official Memorandum dated 11.01.2023 regarding the missing original diary. However, the explanation was not considered properly on the grounds that it was given in an omnibus manner and was not specific. When the explanation offered by the then Senior Assistant was found not satisfactory, then the trial Court ought to have ordered further enquiry into the matter to know the truth. Instead, the trial Court abruptly came to the conclusion that the revision petitioner has not filed the said document in the court.

In support of his contentions, learned counsel appearing for the revision petitioner relied upon the judgment of this Court in Ramakrishna Constructions and Another Vs. Singareni Collieries Company Limited, 2015 (3) ALT 494 (SB) held as follows:

7. Learned counsel appearing for the revision petitioner further relied upon another judgment of this Court in Smt. Kodali Jhansi Rani Vs. Valasala Venkata Ramana @ Ramana (Died) and Others, 2019 (6) ALT 58 (SB) wherein this Court held:

“In the normal course, unless some motive is suggested to the party proposing to adduce secondary evidence to the effect that he made an application to adduce secondary evidence on false grounds, normally he can be permitted to lead secondary evidence. A bare statement made on affidavit by a party would be sufficient proof of fact that the document has been lost or not traced out. There can never be an absolute proof of fact that the document had in fact been lost. A statement of the person that the document was lost and in spite of his best efforts he could not trace out the document would be sufficient evidence of the fact that the document had been lost......”

8. While arguing the matter, the learned counsel appearing for the revision