Secondary evidence requires proof of the original document's non-production; a party must establish a foundation in pleadings for its admissibility.

ORDER :

1. This petition filed under Article 227 of the Constitution impugns the order dated 05.10.2023 in I.A. No. 138 of 2021 in R.C. No. 49 of 2017 on the file of the Court of I Additional Rent Controller, Hyderabad (for short, Court below), whereby the application filed by the respondent herein under Section 65(c) of the Indian Evidence Act, 1872 read with Section 151 of CPC, was allowed.

2. In short, the relevant facts are that petitioner herein and respondent No. 2 herein have filed the aforesaid RC seeking eviction of respondent No. 1 herein from the petition schedule premises. When the matter is at the stage of evidence of petitioner and respondent No. 2 herein, respondent No. 1 filed I.A. No. 138 of 2021 to permit him to lead secondary evidence in respect of order dated 03.12.1990 in R.C. No. 1558/1986 on the file of IV Additional Rent Controller, Hyderabad. In the said application, it is averred that R.C. No. 1558/1986 was filed by one of the legal heirs of the petitioner herein and the same was dismissed by order dated 03.12.1990. The effort of respondent No. 1 herein to obtain certified copy of order dated 03.12.1990 could not fetch any result because the old material/record was not available in the concerned Court and therefore, the photocopy of order dated 03.12.1990 in R.C. No. 1588/1986 was sought to be produced. The petitioner and respondent No. 2 herein filed counter in the said petition pleading that they have no knowledge of filing R.C. No. 1588/1986 and that they were not parties to the said case and sought to dismiss the said application. After hearing both sides, the Court below allowed the said application vide impugned order dated 05.10.2023, which is subject matter of challenge in the present Civil Revision Petition.

3. Sri R.A. Achuthanand, learned counsel for the petitioner, submits that the Court below was impressed by the fact that respondent No. 1 preferred an application for obtaining certified copy of order dated 03.12.1990 in R.C. No. 1588/1986, but same could not be filed for non- availability of record. In order to avoid the delay and on account of the fact that no prejudice will be caused to the other side because other side gets an opportunity to cross-examine on the aspect of relevancy of documents and otherwise, the Court below allowed the said application.

4. Criticising this order, learned counsel for the petitioner raised three-fold submission. Firstly, it is submitted that first and foremost requirement for treating a document as secondary evidence is to ensure that original of the same existed. Without examining that aspect, the Court below has allowed the application for extraneous reasons. Secondly, it is submitted that no amount of evidence can be permitted to be lead unless there exists a pleading in that regard in the plaint/written statement, but in the instant case, there exists no pleading about the order dated 03.12.1990 in R.C. No. 1588/1986. In support of his submission, he placed reliance on a judgment of the Supreme Court in Jagmail Singh v. Karamjit Singh, AIR 2020 SC 2319 and also a judgment of High Court of Andhra Pradesh in the case of Namburu Bulli Veera Bhadra Prasad v. V. Venkata Satyanarayana (Died), 1998 APLJ HC 157. Thirdly, the petitioner was not a party to the proceedings in R.C. No. 1588/1986 and therefore, he pleaded denial about any such litigation and order passed therein.

5. Learned counsel for respondent No. 1 by placing reliance on a judgment of Supreme Court in Marwari Kumhar v. Bhagwanpuri Guru Ganeshpuri, AIR 2000 SC 2629 submits that in view of the principle laid down at Para No. 7 of the said judgment, no fault can be founded in the order impugned.

6. The parties confined to the extent indicated above. They were heard at length and relevant documents were perused.

7. Admitted facts between the parties are that when application under Section 65 (c) of the Indian Evidence Act, 1872, was preferred, the petitioner herein categorically pleaded that he was ne