IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON : 22.12.2016 PRONOUNCED ON : 06.01.2017 CORAM THE HONOURABLE MR. JUSTICE C.V.KARTH I K E Y A N Application No.4455 of 2016 in CS No.809 of 2010
1 Mr.S.Subramanian
2 Mrs.S.Gomathy ...Applicants/plaintiffs Vs
1 Mr.S.T.Tamilarasan
2 Mr.S.Sabapathi
3 Mrs.Uma Mageshwari ...Respondents/Defendants Prayer: Application filed under Order XIV Rule 8 of the O.S.Rules read with Section VII 14(3) praying to permit the applicants/plaintiffs to produce the xerox copy of the sale agreement dated 27.03.2008 as the secondary evidence in the above suit.
For applicants : Mr.C.Uma Shankar For respondents : Mr.S.Ravichandran
JUDGM E N T
Application is filed by the plaintiffs under Order XIV Rule 8 of OS Rules of this Court, read with Order 7 Rule 14(3) CPC seeking permission to produce the xerox copy of the Sale agreement dated 27.03.2008 as secondary evidence in the above suit.
2. C.S.No.809/2010 has been filed for the following reliefs.
a. pass a Judgment and Decree against the first defendant or his agent or authorised person or any person claiming under or acting on behalf of him to execute the Sale Deed in favour of the plainti fs in pursuant to the agreement of Sale dated 27.03.2008 within the stipulated time failing which appoint an officer of this Hon'ble Court to execute the Sale Deed in favour of the Plainti fs on behalf of the first defendant for the Schedule Mentioned Property.
b. And also pray that this Hon'ble Court may be pleased to grant a decree for permanent injunction restraining the defendants their men, agents, servants or any one claiming under them or acting on their behalf from in any way to deal with the suit schedule mentioned property either by way of selling, alienating or encumbering or in any other manner whatsoever;
3. In the affidavit filed in support of the above application, it has been stated by the first applicant/first plaintiff that the first respondent/first defendant who is an Advocate and Cinema Producer, had voluntarily prepared the Sale Deed and had taken original sale agreement to prepare the sale deed. Placing trust in him, the applicants had given original Sale Agreement dated 27.03.2008 and before handed over the same, they had taken xerox copy. The suit had been filed for specific performance based on the xerox copy of the said sale agreement. They have also mentioned in the plaint that the original had been taken away by the first respondent/first defendant and consequently, this application has been filed seeking permission to produce the xerox copy as secondary evidence during trial.
4. The first respondent/first defendant had filed counter affidavit denying the execution of the sale agreement. The second respondent/second defendant, who was his manager, had introduced the first applicant/first plaintiff to join as a Co-producer for the Tamil Film “Megam” and the said film was released on 24.10.2008 and thereafter, there was no connection between the first respondent/first defendant and the first applicant/first plaintiff. It had been further stated that the Power of Attorney granted in favour of the second respondent/second defendant had been cancelled and another person had been appointed as Power of Attorney, who had sold the property in the year 2009 itself. It had been further stated that the agreement of sale is not in existence and the suit has been filed on the basis of forged documents. It had been further stated that the applicants/plaintiffs are indulging in an attempt to make illegal gain from the first respondent/first defendant.
5. It must be mentioned that the second defendant, who was the Power Agent of the first defendant, had expired pending the suit and the third defendant, who is wife of the second defendant had been set Ex-Parte. The plaintiffs have not taken steps to implead legal representatives of the deceased second defendant.
6. It is seen from the plaint, the applicants have come to the Court on the basis of the agreement of sale deed 27.03.2008. They have filed a xerox copy of the agreement of sale. In the original plaint, after paragraph No.10, the following lines have been inserted in ink and even though there is a initial in the margin, it is clear that the said averments had not been made when the plaint was originally prepared. The said insertion is as follows:
Moreover the original sale agreement was taken away by the first defendant and the plainti fs are filing xerox copy of the same.
The plaintiffs have not given any further explanation as to the original agreement of sale.
7. From the written statement of the first defendant, it is seen that the first defendant had totally denied the execution of the alleged agreement of sale.
8. In the written statement of the second defendant, it had been stated that the agreement was not acted upon and moreover, the said original had been destroyed as cancellation of the agreement.
9. The pleadings in the case are extracted, since evidence cannot be adduced in the absence of pleadings. Analysis of the pleadings reveals that the plaintiffs claim that the original agreement of sale was handed over to the first and second defendants and that the first defendant had destroyed the original agreement of sale. It is seen that the applicants have not issued any notice calling upon the first respondent/first defendant to produce the original agreement of sale. Destruction or otherwise would be to the exclusive knowledge of the first defendant/first respondent. Without resorting to this primary step, this application has been filed seeking to mark the xerox copy of the agreement of sale as secondary evidence in the suit. In this connection, the learned counsel for the applicant had brought to the notice of this Court the judgment reported in [2001
(4) CTC 266 ] D.Sarasu V. Jayalakshmi and 2 others, wherein this Court had in the circumstances of that case, permitted marking of photocopy of documents, since the plaint contained necessary assertions and they were substantiated by the evidence of the attestor regarding the execution of the
documents. In that particular case, the attestor was examined and after analysing the evidence of the attestor, this Court had come to the conclusion regarding the existence of the agreement and consequently permitted marking of xerox copy. In this case, the applicants have not taken any such steps.
10. In this connection, it is seen that Section 62 of the Indian Evidence Act deals with primary evidence which means, the document itself to be produced for inspection of the Court.
Section 63 speaks about secondary evidence which reads as follows:- “63. Secondary evidence. - - Secondary evidence means and includes-
(1) Certified copies given under the provisions hereinafter contained;
(2) Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;
(3) copies made from or compared with the original
(4) counterparts of documents as against the parties who did not execute them;
(5) Oral accounts of the contents of a document given by some person who has himself seen it.”
11. Normally documents must be proved by primary evidence, except in the cases mentioned in Section 63. The other relevant provision is Section 65, which reads as follows:-
“65. Cases in which secondary evidence relating to documents may be given. - Secondary evidence may be given of the existence, condition or contents of a document in the following cases;
(a) When the original is shown or appears to be in possession or power - of the person against whom the document is sought to be proved, or of the person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it.
(b) When the existence, condition or contents of the original have been proved to be admitted in writing by the persons against whom it is proved or by his representative in interest.
(c) ....
(d) ....
(e) ....
(f) ....
(g) ....
It is clear that in cases of (a) (c) and (d), the secondary evidence of contents of the document is admissible.
12. Again, in the present case, the applicants having shown to the satisfaction of the Court that the first defendant was in possession of the documents they have not issued any notice to him calling upon him to produce the same. In the decision reported in 2016 (4) L. W. 865 (M/s. Bajaj Auto Limited, Bombay V. M/s. TVS Motor Company Limited) this Court while dealing with Sections 62, 63, 64, 65, 65-A of the Indian Evidence Act, held that if leave had not been obtained under Section 65-A, then secondary evidence cannot be produced as a document during trial. The Court specifically dealt with production of xerox copy and held that objections regarding xerox copies have to be taken in the primary stage itself.
13. In Appeal (Civil) No.2060 of 2007, (J.Yashoda V. K.Shobha Rani) by judgment dated 19.04.2007, the Supreme Court, while discussing a similar issue, held that only when the conditions of Section 65 of Indian Evidence Act are satisfied, the documents can be marked as secondary evidence. Even in that case, holding that the conditions in Section 65(a) had not been satisfied, Supreme Court did not permit marking of xerox as secondary evidence.
14. In this case it is also seen that even in the cause of action paragraph of the plaint, the plaintiffs have not indicated the date on which they handed over the original agreement of sale to the first defendant. This is very crucial, because, the entire suit revolves around the agreement of sale which, according to the plaintiffs, went out of possession of the hands of the applicants. I hold that the applicants have not brought out an acceptable cause to mark the xerox agreement of sale particularly, since the date on which it was allegedly handed over to the defendants had not been stated in the cause of action paragraph and even in the plaint, only a passing remark or sentence has been made. Execution has to be proved by examining the attestor which has not been resorted to by the applicants. The records had not revealed that the applicants have disclosed the witnesses whom they want to examine and whether they propose to examine the attestor to the agreement of sale. I am not inclined to grant relief as sought for. Consequently, the application is dismissed.
06.01.2017 jv Index: Yes/No Internet: Yes/No
C.V.KARTHI K E Y A N , J.
jv
Pre Delivery Order Application No.4455 of 2016 in CS No.809 of 2010
06.01.2017 http://www.judis.nic.in