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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF AUGUST, 2017
BEFORE
THE HON' BLE MRS JUSTICE B.V.NAGARATHNA
WRIT PETITION NO.16894 OF 2017 (GM-CPC)
BETWEEN:
SMT.SHARADA.V W/O.LATE ISHWARA CHANDRA AGED ABOUT 54 YEARS R/AT.GROUND FLOOR DOOR NO.132, VRINDAVANA 21ST CROSS, A BLOCK, 3RD STAGE VIJAYANAGAR MYSURU – 570 001.
... PETITIONER (BY SRI MANMOHAN P.N., ADV.,)
AND:
SMT.KAMALA
W/O.LATE B.RAMA BHAT
AGED ABOUT 81 YEARS
R/AT.UPSTAIRS, DOOR NO.132
VRINDAVANA, 21ST CROSS
‘A’ BLOCK, 3RD STAGE, VIJAYANAGAR
MYSURU – 570 001.
SRI.B.VENKATARAMANA BHAT
S/O.LATE B.RAMA BHAT
AGED ABOUT 64 YEARS
R/AT.DOOR NO.18
MIG KHB COLONY
JAYANAGARA THONACHIKOPPAL
CONNECTING LAYOUT
MYSURU – 570 001.
SMT.B.SARASWATHI
D/O.LATE B.RAMA BHAT
AGED ABOUT 57 YEARS
R/AT.UPSTAIRS, DOOR NO.132
VRINDAVANA, 21ST CROSS
‘A’ BLOCK, 3RD STAGE
VIJAYANAGAR
MYSURU – 570 001.
SRI.SHANKARA NARAYANA BHAT
S/O.LATE B.RAMA BHAT
AGED ABOUT 55 YEARS
R/AT.NO.24, 2ND FLOOR, 1ST MAIN
SHESHADRIPURAM
BENGALURU – 560 073.
DR.HALASYA RAMANATHAN
S/O.LATE HALASYA SUNDARESHAN
AGED ABOUT 65 YEARS
R/AT.DOOR NO.1621, A-MAIN ROAD
6TH CROSS, K-BLOCK, RAMAKRISHNA NAGAR
MYSURU – 570 001.
... RESPONDENTS (BY SRI S.P.SHANKAR, SR. COUNSEL., FOR SMT.MAMATA G.KULKARNI, ADV. FOR R1, R2, R3 AND R4, V/O.DTD.28.08.2017, NOTICE TO R5 DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE ORDER DTD.7.4.2017 PASSED ON THE APPLICATION FILED BY R-3 DTD.15.11.2016 UNDER SECTION 65 OF THE INDIAN EVIDENCE ACT READ WITH SECTION 151 OF CPC IN O.S.NO.1135 OF 2006 PASSED BY THE COURT OF IV ADDL. SENIOR CIVIL JUDGE, MYSURU VIDE ANNEX-E AND CONSEQUENTLY REJECT THE APPLICATION FILED BY R-3.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Though this writ petition is listed for preliminary hearing, with the consent of learned counsel on both the sides, it is heard finally.
The petitioner herein is a plaintiff in O.S.No.1135/2006, which is pending on the file of the IV Additional Civil Judge (Sr.Dvn.) at Mysore. The suit has been filed by the petitioner herein seeking the relief of partition and separate possession of half share in the suit schedule properties and for other incidental and ancillary reliefs.
During trial, at the time of examination of DW-3, who is respondent No.3 herein, an application was filed under Section 65 of the Indian Evidence Act (hereinafter referred to as ‘the Act’ for the sake of brevity), seeking permission to mark a copy of “Income Tax return submitted by Late Sri Ishwara Chandra, husband of the plaintiff for the Assessment year 1991- 1992” as an exhibit. Objections were filed to the said application. The trial Court by the impugned order dated 07.04.2017 has allowed the said application and permitted the defendants to mark the said document in question i.e., a copy of the Income Tax Return in their evidence, subject to objections to be decided at a final stage. Being aggrieved by the order of the trial Court, plaintiff has preferred this writ petition.
I have heard learned counsel for the petitioner and learned Senior Counsel appearing for respondent Nos.1 to 4 and perused the material on record.
Petitioner’s counsel submitted that serious objections were raised to the very marking of the document as a piece of secondary evidence and that the objections have not been considered by the trial Court. The trial Court has simply postponed the consideration of the objections with regard to the very marking of the document in evidence so as to consider the same at the final stage. He submitted that the trial Court cannot avoid its responsibility in such a manner. That having regard to the dictum of the Hon’ble Supreme Court in the case of H.Siddiqui (dead) by LRs v. A.Ramalingam - AIR 2011 SC 1492, the trial Court ought to have given a ruling with regard to the admissibility of secondary evidence and could not have
postponed the same to be decided at a final stage. Hence, he contended that the impugned order be set aside and direction be issued to the trial Court to consider the objections raised by the petitioner with regard to the admissibility of the document in question as a piece of secondary evidence and to decide the same on its merits.
Per contra, learned Senior Counsel appearing for respondent Nos.1 to 4 has brought to my notice the decision of the Hon’ble Supreme Court in the case of Bipin Shantilal Panchal v. State of Gujarat and Another – AIR 2001 SCC 1158, which is a judgment by three learned Judges of the Hon’ble Supreme Court and submitted that the tentative marking of a document in evidence is not proof of the same and that the objections to the tentative marking of a document could always be decided at a later stage and that the
objections raised in the instant case is with regard to piece of secondary evidence. The objections are not in the context of removal of deficiency of stamp duty or non-registration of a document which would arise in a case of original document in which cases the objection to the marking of such a document would have to be considered then and there. He contended that the trial Court has been practical in the matter by following the dictum of the Hon’ble Supreme Court in the case of Bipin Shantilal Panchal by permitting defendants to mark the document in question tentatively, subject to objections, to be decided at a final stage. It is submitted by learned Senior Counsel that there is no merit in the writ petition and that the writ petition may be dismissed, as there is no prejudice caused to the petitioner, who could always raise objection to the tentative marking of a document at a later stage.
Having heard the learned counsel for the parties and on perusal of materials on record, it is noted that the controversy in the instant case is in a narrow compass. Defendant No.3 sought permission for marking of a copy of the Income Tax return dated 15.9.1997 as a piece of secondary evidence. It is the contention of the defendants that the procedure contemplated under Sections 65 and 66 of the Act have been complied with. However, the plaintiff had objections to the very marking of the document. The principal contention of petitioner’s counsel is that the said document cannot be construed to be a piece of secondary evidence at all and further the procedure for marking of the said document has not been complied with in the instant case.
At the outset, it must be noted that the objections raised by the petitioner in the instant case is not with regard to the marking of original document. Infact, there are a catena of decisions which categorically subscribe that objections raised to marking of an original document which relates to deficiency of stamp duty or non-registration of the original document, the Court is bound to consider the objections before the stage of marking of the document and give a ruling on the same and then proceed either to mark the document or not to mark the document as a piece of evidence.
But in the case of secondary evidence, the Court is bound to follow the procedure contemplated under Sections 65 and 66 of the Act. Of course, in the first instance, all documents which are sought to be marked as a piece of secondary evidence must in the
first place come within the scope of Section 63 of the Act. Therefore, the trial Court must apply its mind both with regard to the manner in which the piece of secondary evidence is to be let in and secondly, as to whether the document in question is indeed secondary evidence or not. Having regard to the parameters set out under Section 63 of the Act, it is no doubt true that in the case of Bipin Shantilal Panchal v. State of Gujarat and Another - AIR 2001 SC 1158, the Hon’ble Supreme Court in paragraph Nos.12 to 15 has held as under:
“12. It is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the Court does not proceed further without passing Order on such objection. But the fall out of the above practice is this: Suppose, the trial Court, in a case, upholds a particular objection and
excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the cases finally. If the appellate or revisional Court, when the same question is re-canvassed, could take a different view on the admissibility of that material in such cases the appellate Court would be deprived of the benefit of that evidence, because that was not put on record by the trial Court. In such a situation the higher Court may have to send the case back to the trial Court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realized through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or re-moulded to give way for better substitutes which would help acceleration of trial proceedings.
When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial Court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the Court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the Court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.
The above procedure, if followed, will have two advantages. First is that the time in the trial Court, during evidence taking stage, would not be wasted on account of raising such objections and the Court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior Court, when the same objection is re-canvassed and reconsidered in appeal or revision against the final judgment of the trial Court, can determine the correctness of the view taken by the trial court regarding that objection, without bothering to remit the case to the trial Court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses.
We, therefore, make the above as a procedure to be followed by the trial courts whenever an objection is raised regarding the
admissibility of any material or any item of oral evidence.”
But in a subsequent judgment in the case of H.Siddiqui (supra), the Hon’ble Supreme Court has categorically stated as under: 10. Provisions of Section 65 of the Act 1872 provide for permitting the parties to adduce secondary evidence. However, such a course is subject to a large number of limitations. In a case where original documents are not produced at any time, nor, any factual foundation has been led for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is
in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law. The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. (Vide: The Roman Catholic Mission & Anr. v. The State of Madras & Anr., AIR 1966 SC 1457; State of Rajasthan & Ors. v. Khemraj & Ors., AIR 2000 SC 1759; Life Insurance Corporation of India & Anr. v. Ram Pal Singh Bisen, (2010) 4 SCC 491 : (2010 AIR SCW 1900); and M. Chandra v. M.Thangamuthu & Anr., (2010) 9 SCC 712) : (AIR 2011 SC 146).
Infact, the said decision has been relied upon in the case of KALIA v. STATE OF MADHYA PRADESH - (2013) 10 SCC 758 at paragraph No.13 which is extracted as under for immediate reference.
“13. Section 65(c) of the 1872 Act provides that secondary evidence can be adduced relating to a document when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason, not arising from his own default, or neglect, produce it in reasonable time. The Court is obliged to examine the probative value of documents produced in the Court or their contents and decide the question of admissibility of a document in secondary evidence (Vide H.Siddiqui v. A.Ramalingam –(2011) 4 SCC 240 and Rasiklal Manikchand Dhariwal v. M.S.S.Food Products – (2012) 2 SCC 196). However, the secondary evidence of an ordinary document is admissible only and only when the party desirous of admitting it has proved before the Court that it was not in his possession or control of it and further, that he has done what could be done to procure the production of it. Thus, the party has to account for the non-production in one of the ways indicated
in the section. The party further has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. When the party gives in evidence a certified copy / secondary evidence without proving the circumstances entitling him to give secondary evidence, the opposite party must raise an objection at the time of admission. In case, an objection is not raised at that point of time, it is precluded from being raised at a belated stage.
Further, mere admission of a document in evidence does not amount to its proof. Nor mere marking of exhibit on a document does not dispense with its proof, which is otherwise required to be done in accordance with law (Vide Roman Catholic Mission v. State of Madras – AIR 1966 SC 1457, Marwari Kumhar v. Bhagwanpuri Guru Ganeshpuri – (2000) 6 SCC 735, R.V.E.Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P. Temple – (2003) 8 SCC 752, Dayamathi Bai v. K.M.Shaffi –
(2004) 7 SCC 107 and LIC v. Ram Pal Singh Bisen – (2010) 4 SCC 491.”
On a conspicuous consideration of the aforesaid decisions it is obvious that in Kalia’s case, the Hon’ble Supreme Court did not have the benefit of considering the dictum in Bipin Shantilal Panchal, which decision is relied upon by the trial Court. But in Kalia’s case, the Hon’ble Supreme Court has categorically relied upon H.Siddiqui v. A.Ramalingam – AIR 2011 SC 1492 and Rasiklal Manikchand Dhariwal v. M.S.S.Food Products - (2012) 2 SCC 196 and has held that the Court is obliged to examine the probative value of documents produced in the Court or their contents and decide the question of admissibility of a document in secondary evidence. The stage at which the Court has to consider these questions is at the time when the said document is produced as has
been held in H.Siddiqui’s case i.e., before making any endorsement thereon.
In the circumstances, the trial Court could not have postponed the consideration of the objections on the secondary evidence sought to be produced by the defendants to a subsequent or a final stage as has been stated in the impugned order. The trial Court ought to have considered the objections raised with regard to admissibility of secondary evidence and give a ruling on that aspect before proceeding further in the matter. In the circumstances, the impugned order is set aside. The trial Court is directed to re-consider the application filed by defendant No.3 under Section 65 of the Act read with Section 151 of Code of Civil Procedure, 1908 and give a ruling as to the admissibility of the document in question sought to be marked by way of secondary
evidence and then to proceed to decide the suit in accordance with law. Writ petition is disposed of in light of the observations made above and in accordance with law. All contentions on both sides are left open. No costs.
Sd/- JUDGE
VMB