IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF OCTOBER 2019 BEFORE THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV WRIT PETITION No.61759/2016 (GM-CPC) BETWEEN:
1. SMT. RATHNAMMA @ NAGARATNAMMA W/O LATE N. ADIMURTHY, AGED ABOUT 60 YEARS.
2. SRI A. LAKSHMIPATHY, S/O LATE N. ADIMURHTY, AGED ABOUT 32 YEARS.
BOTH ARE R/A C/O P. SRINIVAS NO.28, NEAR WATER TANK, JAKKUR MAIN ROAD, AMRUTHAHALLI, BENGALURU – 560 092.
… PETITIONERS (BY SRI VENKATARAMA REDDY, ADVOCATE) AND:
SMT. NAGARATHNAMMA, W/O LATE N. ADIMURTHY, AGED ABOUT 44 YEARS, R/A PRASHANTH NAGAR, GOWRIBIDANUR, CHIKKABALAPUR DISTRICT.
(BY SRI N. VAGEESH, ADVOCATE) … RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS AND QUASH IMPUGNED ORDER ANNEXURE-D DATED 23.11.2016 MADE IN O.S. NO.373/1996 PENDING BEFORE PRINCIPAL CIVIL JUDGE AND JMFC, DEVANAHALLI AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioners, who claim to be the legal representatives of late N.Adimurthy have challenged the order of the trial Court dated 23.11.2016 passed in O.S.No.373/1996, whereby the trial Court has allowed the application filed under Section 65(c) of the Indian Evidence Act, 1857 (‘the Act’ for brevity) by Smt.Rathnamma @ Nagarathnamma and permission has been granted to treat the documents at Sl. Nos. 1 to 5 referred to in the application under Section 65(c) of the Act to be secondary evidence.
2. The admitted facts being that this Court in R.S.A. No.653/2011 and R.S.A.No.499/2011 by order dated 19.01.2015 had remanded the matter for recording of evidence with respect to an application under Order 22 Rule 5 of C.P.C. to find out as to who are the legal representatives of late Adimurthy in light of rival claims.
3. In the same Regular Second Appeal proceedings, this Court, by its order dated 06.09.2016 had remanded the matter once again with a specific direction that the trial Court to ensure compliance with the requirements under Section 65 of the Act before admitting the photocopies of the documents. It is a matter of record that the trial Court had marked Exhibits-P4 to P16 whereas, the contention of the present petitioners was that the said documents could not be looked into, as the same could not be treated as secondary evidence, unless there was a order to such effect treating it to be so after following the requisite procedure.
4. This Court had observed that there has to be foundation by way of necessary pleadings only upon which trial Court could consider as to whether documents sought to be marked could be treated to be secondary evidence. The respondent herein filed an application under Section 65(c) of the Act and has sought for treating the following documents at Sl.Nos.1 to 5 of the application as secondary evidence. The list of said documents are as follows:-
“1. Copy of the order sheet in CMC No.22/1987 on the file JMFC at Bagepalli.
2. Copy of the petition under Section 125 of the Code of Criminal Procedure filed by one Rathnamma in CMC No.22/1987 on the file of JMFC Bagepalli.
3. The copy of the statement of objections filed by Adimurthy in CMC No.22/1987 on the file of JMFC Bagepalli.
4. The copy of the compromise petition in CMC No.22/1987 on the file of JMFC Bagepalli.
5. Photograph of Nagarathnamma with deceased Adimurthy with daughter Asharani.”
5. The said documents referred to above have already been marked in evidence before the trial Court as Exhibits P7 to P10.
6. Learned counsel for the petitioners however contends that application filed under Section 65(c) of the Act is not maintainable in light of the documents as referred to in the application at Sl.Nos.1 to 5 not being annexed with the application.
It is further contended that the petitioners had filed an application under Section 151 of CPC seeking for a direction to the respondent herein to serve the copies of the documents mentioned in the application filed under Section 65 of the Act, despite which documents have not been served on the petitioner.
It is also contended that the application could not be considered without copies of the said documents being served on the learned counsel for the petitioners herein.
7. Learned counsel for the petitioners further contends that the Court ought to have taken note of Section 63 of the Indian Evidence Act and ought to have noted the requirements under Section 63 of the Act before proceeding to pass an order by treating the documents as secondary evidence under Section 65 (c) of the Act.
8. Learned counsel for the petitioners relies on the order dated 17.09.2019 passed in Writ Petition No.48657/2017 (GM-CPC) and the decision of the Apex Court in Civil Appeal No.2060/2007.
9. Learned counsel for the respondent on the other hand contends that the case to treat the documents as secondary evidence has been made out insofar as it is the stand of respondent that the documents at Sl.Nos.1 to 4 were copies of certified copies as is borne out from the records.
10. Learned counsel for the respondent has produced the copies of documents at Sl.Nos.1 to4 which have been marked before the trial Court which are perused. It is further contended that it is the specific case that the documents were destroyed and such destruction was by the court office itself and an endorsement to the said effect has been relied upon by the respondent. Hence, it is contended that under Section 65(c) of the Indian Evidence Act, the fact that documents are destroyed not due to any act of the applicant, is by itself sufficient reason for the Court to take note and allow production of such documents as secondary evidence.
11. The trial Court while passing the impugned order at Paragraph 13 has observed that the records relating to case CMC No.22/1987 on the file of JMFC, Bagepalli have been destroyed, as is evidenced from the endorsement and as the applicant having made attempts to get the said documents, but was unable to obtain the same and accordingly the present application has been filed. Trial Court while allowing the application has observed that mere marking of the said document would not result in discharging the burden on the respondent herein from proving the contents of the document and has accordingly allowed the said application thereby treating the documents referred to in the application to be secondary evidence.
12. Heard counsel on both the sides. It is to be noted that Section 63 of the Indian Evidence Act,1872, provides for definition of what would be secondary evidence and Section 65 of the Act provides for circumstances under which secondary evidence can be let in. Section 63 of the Act is clear and envisages and refers to copies including copies compared with such copies, copies made from or compared with the original, copies made from the original by mechanical processes which in themselves ensure accuracy of the copy. Illustration (a) to Section 63 of the Act provides that photograph of the original would be secondary evidence of its contents, though the two have not been compared.
13. It is to be noted that it is the specific assertion of learned counsel for the respondent that the documents at Sl.Nos. 1 to 4 are xerox copies of the certified copies.
14. It is contended by the learned counsel for the respondent that the evidence contains admissions when the said documents were confronted to the witnesses. It is further asserted that the various questions relating to the proceedings with respect to which the documents relate to were also enquired into during evidence and answers have been elicited.
15. Insofar as Section 63 of the Act is concerned, it can be stated that the copies of certified copies would come within the ambit of secondary evidence and the conclusion drawn by the trial court cannot be interfered with as no ground is made out to draw any other conclusion. In fact in the statement of objections filed by the petitioner in RSA No.653/2011 as regards the order dated 16.02.2015 passed by the Civil Judge at Devanahalli, by the petitioner herein, there is a reference to the proceedings in C.M.C. No.22/1987, in particular to the compromise petition. In the evidence of PW-1, the filing of the petition in C.M.C. No.22/1987 has been admitted to. All this would indicate that the documents sought to be produced, have been referred to by the petitioner in the evidence and pleading, hence reliance on the copies as secondary evidence cannot be rejected. It would also be relevant to note that the evidence recorded remains undisturbed and can be referred to, and the direction on remand was limited to following the procedure afresh for production of the documents and treating the same as secondary evidence after laying down a foundation to treat the same as secondary evidence.
16. Insofar as assertion of the learned counsel for the petitioner that the requirement of the Section 65 of the Act is also to be made good, it is to be noted that it is the specific case of the respondent that under Section 65 (c) of the Act where the original has been destroyed or lost, secondary evidence could be given relating to the existence, condition or contents of the documents. The trial Court has applied its mind and come to a conclusion while accepting the fact that records have been destroyed and the trial Court has recorded the finding and accepted the documents as secondary evidence. Such conclusion of the trial Court cannot be interfered with in the absence of any perversity. In the light of limitation relating to exercise of power under Article 227 of the Constitution of India as regards orders of the trial Court, the learned counsel for the respondent relied on the judgment of the Apex Court in the case of Raj Kumar Bhatia v. Subhash Chander Bhatia reported in (2018) 2 SCC 87 and contends that there are inherent limits for exercise of power under Article 227 of the Constitution of India. The Apex Court has observed that while the High Courts are exercising power under Article 227 of the Constitution of India, the Courts are to confine its enquiry as to whether the inferior Court has acted within the parameters of its jurisdiction and that the High Court does not act as an Appellate Court or tribunal and it is not open to it to review or reassess the evidence upon which the inferior Court or tribunal has passed the order. In the present case also, taking note of the fact that the trial Court has recorded the findings which is in substantial compliance of the legal requirement, no ground is made out to interfere with such order.
17. Though the learned counsel for the petitioner contends that the documents ought to have been produced along with the application, it is to be noted that the documents have already been marked in evidence and the respondent is precisely seeking to treat the documents already produced as secondary evidence and is not seeking to produce any other documents. The respondent is merely seeking to make out a ground to treat the documents already marked in evidence as secondary evidence. It is to be noted that proof of the documents is still a matter for trial and it is for the respondent to prove the same.
18. Learned counsel for the petitioner has relied on the judgment of the Apex Court referred to earlier, however, the position of law that has been reiterated in the said judgment is with respect to scope and ambit under Section 63 and Section 65 of the Act. The Court has taken note of circumstances where Section 63 or Section 65 of the Act cannot be allowed to be invoked unless sufficient grounds are made out as to whether the documents are misplaced or lost by any act of the parties themselves. However, the present case relates to circumstances where the documents are destroyed and such destruction is not due to any act of lapse or negligence of the party, but by the act of the Court itself, which fact is evidenced by the endorsement.
19. In light of the same and also noticing that documents at Sl.Nos.1 to 4 relate to proceedings of the Court and with respect to which there has been confrontation of the said documents in evidence and answers elicited, it can be stated that no ground is made out to intervene and interfere with the findings recorded by the trial Court.
Accordingly, writ petition is rejected, subject to the above observations.
Sd/- JUDGE VGR/NS