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2023 Supreme(Online)(KAR) 22463
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 11th DAY OF JANUARY, 2023
BEFORE
THE HON’BLE MR. JUSTICE ANANT RAMANATH HEGDE
W.P.NO.203252/2022 (GM-CPC)
BETWEEN:
MAHADEVI W/O BHIMASHANKAR PATIL,
AGED ABOUT 40 YEARS, OCC: AGRICULTURE,
R/O ANKALAGI, TQ. JATT, DIST. SANGLI,
NOW RESIDING AT
C/O BHIMASHANKAR PATIL,
MANJUNATH NAGAR,
NEAR MALLIKARJUN
PRIMARY SCHOOL, DARGA ROAD,
DIST. VIJAYPUR-586101
... PETITIONER
(BY SRI S.S. MMADAPUR, ADVOCATE)
AND:
SRI PRAKASH S/O SHIVAPPA BANDAGAR,
AGED ABOUT 33 YEARS, OCC: AGRICULTURE,
R/O WALASANG, TQ. JATH, DIST. SANGLI-416416.
... RESPONDENT
(BY SRI GANESH S. KALABURAGI, ADVOCATE)
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THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A
WRIT
OF
CERTIORARI
OR
ANY
OTHER
WRIT
OR
DIRECTION OR ANY OTHER ORDER IN THE NATURE OF
WRIT QUASHING THE ORDER DATED 05.12.2022 PASSED
BY THE HON'BLE SENIOR CIVIL JUDGE, INDI ON IAS 16
TO 18 VIDE ANNEXURE-H IN OS NO.29/2014.
THIS PETITION COMING ON FOR HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:-
A party's application to summon the other party to produce an original document amounts to notice to produce the document under Section 65(a) of the Indian Evidence Act, and the court should not reject such an application at the threshold without considering the evidence to be led by the parties on the document.
Headnote:
SECONDARY EVIDENCE - PRODUCTION - NOTICE - [The application filed by the defendant requesting the court to summon the plaintiff to produce the original document amounts to notice to produce the document which is one of the requirements under Section 65(a) of the Indian Evidence Act.]
Fact of the Case:
The petitioner filed a writ petition challenging the order of the Trial Court rejecting the defendant's application to reopen the case, lead evidence, and produce secondary evidence (a xerox copy of an agreement for sale). The Trial Court rejected the application on the grounds that the defendant had not given notice to the plaintiff to produce the original document and had not complied with the requirements of Sections 63, 64, and 65 of the Indian Evidence Act for the production of secondary evidence.
Finding of the Court:
The High Court allowed the writ petition, set aside the impugned order, and allowed the defendant to lead evidence and produce the xerox copy of the document dated 10.06.2013. The High Court held that the defendant's application to summon the plaintiff to produce the original document amounted to notice to produce the document under Section 65(a) of the Indian Evidence Act and that the Trial Court erred in rejecting the application at the threshold without considering the evidence to be led by the parties on the document.
Issues: Whether the defendant's application to summon the plaintiff to produce the original document amounted to notice to produce the document under Section 65(a) of the Indian Evidence Act.
Ratio Decidendi: The High Court relied on the ratio laid down by a coordinate Bench of the High Court in Gafarsab @ Sati Gafar Sab vs. Ameer Ahamad (AIR 2006 Kant 95), which held that a party is not required to file an application requesting the court to permit them to lead secondary evidence but can simply step into the witness box and lead evidence setting out the circumstances under which they are unable to produce the primary evidence. If the court is satisfied that a case is made out for the production of secondary evidence, it can permit the party to adduce secondary evidence subject to Sections 63 and 65 of the Act.
Final Decision: The High Court allowed the writ petition, set aside the impugned order, and allowed the defendant to lead evidence and produce the xerox copy of the document dated 10.06.2013. The High Court made it clear that it had not expressed any opinion on the admissibility or execution of the said document, which was to be considered by the Trial Court at the time of final hearing after considering the evidence placed on record.
Heard learned counsel Sri S.S.Mamadapur appearing
on behalf of petitioner and learned counsel Sri Ganesh
C.Kalburgi appearing for sole respondent.
2.
This writ petition is filed challenging the order
dated 05.12.2022 in OS No.29/2014 on the file of Senior
Civil Jude, Indi wherein the Trial Court has rejected IAs.16,
17 and 18 filed by the defendant, wherein the defendant
sought reopening of the case, permission to lead evidence
and to produce secondary evidence i.e., xerox copy of an
agreement for sale dated 10.06.2013. This application was
opposed by the plaintiff. The Trial Court accepted the
contentions of the plaintiff and rejected the application on
the premise that the notice is not given to the plaintiff for
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production of original copy of the agreement which the
defendant alleged what is with the plaintiff. The Trial Court
is also of the view that the requirement of Sections 63, 64
and 65 of the Indian Evidence Act is not complied for
production of secondary evidence.
3.
Learned counsel for the petitioner would
submit that the defendant has filed an application before
the Trial Court alleging that the original of the document is
with the plaintiff and the plaintiff should be summoned to
produce the document. To this application the plaintiff has
filed statement of objection denying the custody of the
original agreement with him and plaintiff has also denied
the execution of document dated 0.06.2013 itself.
4.
Under the circumstances, the learned counsel
for the petitioner would submit that the Trial Court was
error in holding that the defendant has not issued notice to
the respondent calling upon the plaintiff to produce the
original document.
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5.
Learned counsel for the petitioner would
further submit that the application to summon the
document itself is a notice to the plaintiff to produce the
original document, as such he has complied with the
requirement of Indian Evidence Act for production of
secondary evidence.
6.
Learned counsel Sri Ganesh Kalburgi appearing
for
the
plaintiff/respondent
would
submit
that
the
application is filed without laying the foundation for
production of secondary evidence. He would further submit
that it is not the case of the defendant that the copy which
he seeks to produce is the copy of the original document
dated 10.06.2013. It is also his contention that the
application is filed at a belated stage and defendant has
not made out any case as required under the Indian
Evidence Act for production of secondary evidence.
7.
This court has considered the contentions
raised at the Bar and also perused the documents placed
on record including the impugned order.
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8.
There is no doubt that the document which is
sought to be produced is said to be the xerox copy of the
document dated 10.06.2013. The defendant has filed an
application before the Trial Court requesting the court to
summon the plaintiff to produce the original document
dated 10.06.2013. To this application, the plaintiff has filed
statement of objection denying the contention of the
defendant that the plaintiff is the custodian of the
document. In addition, plaintiff has denied the execution of
document itself.
9.
This court is of the view that the application
filed by the defendant requesting the court to summon the
plaintiff to produce the original document amounts to
notice to produce the document which is one of the
requirements under Section 65(a) of the Indian Evidence
Act.
10.
Section 63 of the Indian Evidence Act defines
the secondary evidence. Section 63(2) and (3) of the
Indian Evidence Act reads as under :-
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"(2)
copies
made
from
the
original
by
mechanical process which in themselves insure the
accuracy of the copy, and copies compared with such
copies;
(3) copies made from or compared with the
original."
These two expressions found in Section 63 of the Indian
Evidence Act would also indicate that xerox copies can also
be secondary evidence, if other things contemplated in
Section 63 of the Indian Evidence Act are complied
