HON’BLE SRI JUSTICE C.V. NAGARJUNA REDDY C.R.P.No.2339 of 2014 Date : 7-8-2014 Between :
Smt. M. Rukminamma ..
Petitioner And M. Tuljasingh and others ..
Respondents Counsel for petitioner : Sri K. Santhanam Counsel for respondents : --
The Court made the following:
ORDER:
This Civil Revision Petition is filed against order dated 10-4-2014 in I.A.No.934 of 2012 in O.S.No.720 of 2006 on the file of the Motor Accidents Claims Tribunal-XI Additional District Judge (FTC), Ranga Reddy District, at L.B. Nagar.
The petitioner filed the above mentioned suit for specific performance of agreement of sale. She has filed I.A.No.934 of 2012 under Section 65 of the Indian Evidence Act, 1872 (for short "the Act") r/w. Section 151 CPC for permission of the Court to mark a photocopy of postal acknowledgement purportedly containing the signature of defendant No.4, as secondary evidence. It is the pleaded case of the petitioner that she has got issued a legal notice through her counsel Sri Adams Kondamudi and that the same was served on defendant No.4. That when the petitioner approached her counsel and requested for handing over of the acknowledgement, he is stated to have informed her that the original acknowledgement was misplaced and that he gave a photo copy of the same. The petitioner has therefore sought for marking the photo copy of the said acknowledgement as secondary evidence. The lower Court observed that six years after filing the suit, the petitioner addressed letter to the Postal Department enquiring about the service of notice; that the Postal Department has given a reply stating that records are maintained only for two years; and that in the absence of postal receipt it was not possible to verify whether the notice was served on the addressee. The lower Court held that the petitioner was not diligent in approaching the Postal Department and she has also failed to file an affidavit of her previous Advocate who is stated to have handed over a photo copy of the acknowledgement. The Court also wondered at the necessity of taking a photo copy of the acknowledgement.
Under Section 65 of the Act, secondary evidence may be given of the existence and the contents of a document under different exigencies. The nearest contingency which may apply to the present case is clause (a) of Section 65 of the Act, which reads as under:
“When the original is shown or appears to be in the possession or power – of the person against whom the document is sought to be proved, or, of any 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;
The original acknowledgement is expected to be in possession of the petitioner’s Advocate. It is not the pleaded case of the petitioner that she has given a notice under Section 66 of the Act to her Advocate to produce the original. On the contrary, she has pleaded that when she approached her previous Advocate, he has handed over a photo copy of the same. As rightly observed by the lower Court, the affidavit of the said Advocate has not been filed.
The learned counsel for the petitioner stated that the previous Advocate is no more. No whisper has been raised on the death of the previous Advocate. Therefore, it is not possible to countenance such a plea. At any rate, as pointed out by the lower Court, the petitioner is not is not expected to keep quiet for more than six years after filing of the suit and seek to mark a purported photo copy of acknowledgement.
For the above mentioned reasons, I do not find any merit in the Civil Revision Petition and the same is accordingly dismissed.
As a sequel to the dismissal of the Civil Revision Petition, CRPMP No.3264 of 2014 filed for interim relief is disposed of as infructuous.
Justice C.V. Nagarjuna Reddy Date : 7-8-2014 AM