TMI Blog2018 (7) TMI 2188X X X X Extracts X X X X X X X X Extracts X X X X ..... idence. The Court also considered the cases relied upon by the petitioners therein and distinguished them on facts, while dismissing the criminal petition - it can be understood that the Courts have been permitting admission of xerox copies into evidence, but the nature of the documents and the probative value of the documents and possibilities of tampering the documents have to be taken into consideration, before permitting xerox copies into evidence. Whether the original documents of the documents, sought to be admitted, are proved as lost? - HELD THAT:- The respondent filed his affidavit and affirms that the documents were lost while the office was being shifted and the case files were being transferred from one team to another - We are also inclined to accept the above approach adopted by this Court and consider the sworn affidavit of the respondent as sufficient to prove the fact of loss of originals. Whether the notice mandated by Section 66 of the Indian Evidence Act is necessary before admitting the documents? - HELD THAT:- The notice under Section 66 of the Act is necessary when the original is shown to be in possession of the person against whom the document is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hence, the order of the Court below to the extent of admitting those documents can be sustained - the said documents cannot be permitted to be taken in evidence without following the procedure prescribed under Section 65(a) of the Act. The documents at Sl. Nos. 20 and 32 are the tables prepared by the petitioner and the same cannot be considered as documents also. Hence, they cannot be admitted in evidence. The civil revision petition is allowed in part. - Civil Revision Petition No. 2399 of 2018 - - - Dated:- 13-7-2018 - C. Praveen Kumar and T. Rajani, JJ. For Appellant: Vimal Varma Vasi Reddy For Respondents: Ch. Pushyam Kiran JUDGMENT T. Rajani, J. 1. This revision arises out of the order dated 27.11.2017 passed by XXIV Additional Chief Judge, City Civil Court, Hyderabad in I.A. No. 283 of 2017 in COS. No. 72 of 2017, by virtue of which the Court allowed the petition, which was filed by the petitioner therein, to receive copies of certain documents, under Section 65 of the Indian Evidence Act (for short 'the Act'). The petition, which was filed before the Court below, was on the ground that the petitioner/plaintiff has referred to and relie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oned therein and hence, the statement made in the petition that they are notarized xerox copies is false and on that premise itself, the order needs to be set aside. He further contends that the respondent failed to the prove that the documents were lost and even if it is considered that he has proved that the documents were lost, the pre-condition laid down under Section 65 of the Act i.e. to issue notice to the adverse party under Section 66 of the Act, calling upon it to produce the original, is not fulfilled. Apart from that, with regard to admitting the documents, which are not filed along with the plaint or without seeking permission to file them later, the counsel contends that the same cannot be permitted, in view of Order 7 Rule 14 of the Civil Procedure Code. 5. The counsel for the respondent, on the other hand, submits that mere admission of the documents would not amount to proof of the documents and hence, there would not be any prejudice to the petitioner, if the documents are allowed to be admitted in evidence. He further contends that the counter filed on behalf of the respondent is not in the form of an affidavit signed by the respondent and hence, it has to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otostat copy can also be admitted in evidence. 9. The decision in H. Siddiqui v. A. Ramalingam 2011 (3) ALT 19 (SC) : (2011) 4 SCC 240 relied upon by the counsel for the petitioner is also on the same aspect, wherein it was held that admitting the signature in photostat copy of the document does not amount to admitting the contents of the document; where original documents are not produced at any time, nor any factual foundation laid for giving secondary evidence, it is impermissible to allow a party to adduce secondary evidence; secondary evidence must be authenticated by foundational evidence that the alleged copy is, in fact, a true copy of the original; secondary evidence relating to contents of documents is inadmissible until non-production of original is accounted for; in the instant case, the trial Court inferred that there is a specific admission by the respondent that he had executed power of attorney in favour of his brother since he admitted the signature on photocopy of power of attorney; admission of a document or its contents may not necessarily lead to drawing any inference until contents thereof have some probative value. Hence, drawing inference by the trial Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner with regard to the failure of the respondent to prove that the original documents, sought to be admitted, were lost, is vehement and is based on the fact that no dates were mentioned in the petition with regard to the shifting of the office of the respondent and other details. The method and manner in which the fact that original documents were lost has to be proved is not laid down anywhere, but by virtue of the decisions rendered in the cases coming before the Courts, the Courts have been upholding and rejecting certain modes of proof, by considering other circumstances. The counsel for the respondent relied on a decision of the Supreme Court in Rakesh Mohindra v. Anita Beri (2016) 16 SCC 483 wherein the facts dealt with by the Supreme Court are that, for the purpose of seeking permission to prove the letter of disclaimer executed by one Justice Tek Chand by way of secondary evidence, the defendant summoned the record of GLR form the Office of DEO, Ambala, who is stated to be custodian of the record. According to the appellant therein, at the time of sanction of mutation with respect to the suit property, the appellant had filed the original affidavits of the co-sharer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08.04.2010 (Smt. Sattamma v. Ch. Bhikshapati Goud) and held that an affidavit affirming that the original documents are lost would entitle the party to adduce secondary evidence. The reason which weighed with the Court while deciding as such is, that the respondent therein was only seeking to adduce evidence subject to acceptance or rejection of any document by the Court at any later stage of proving the photostat of the document beyond the preponderance of probabilities. 16. In this case also, the respondent filed his affidavit and affirms that the documents were lost while the office was being shifted and the case files were being transferred from one team to another. We are also inclined to accept the above approach adopted by this Court and consider the sworn affidavit of the respondent as sufficient to prove the fact of loss of originals. The point is accordingly answered. POINT No. 3: 17. Having held that a xerox copy of the document can be marked subject to examination of probative value and having held that the affidavit of the respondent would suffice to prove the loss of original, we are now confronted with the question as to whether all the documents proposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2, 14 to 21, 24, 25, 29 are the documents for which also copies can be expected to be available with the petitioner. Items 22, 23, 26, 28, 30 and 31 are the correspondence between two third parties, of which probably the petitioner may not have the copies. No explanation is found in the petition, with regard to the probability of the copies of the above documents being with the petitioner. In Ehtisham's case the Apex Court observed that the law is well settled that if a party wishes to lead secondary evidence the court is obliged to examine the probative value of the document produced in the court or their contents and decide the question of admissibility of a document in secondary evidence and at the same time the party has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. When the document falls under Section 65(a) of the Act, notice under Section 66 of the act becomes necessary. Hence, the notice under Section 66 of the Act is required to be given to the party in whose possession the original or the copies of the documents are, for production of such copies. 21. The point is answered accord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... settled that power under Article 227 is limited to seeing that the Courts below function within the limit of its authority or jurisdiction. This Court placed reliance on Nagendra Nath's case in a subsequent judgment in Niburan Chandra Bag v. Mahendra Nath Ghugu AIR 1963 SC 1895. The Court observed that jurisdiction conferred under Article 227 is not by any means appellate in its nature for correcting errors in the decisions of subordinate Courts or tribunals but is merely a power of superintendence to be used to keep them within the bounds of their authority... 25. The counsel for the petitioner in order to contend that the error committed by the Court below is as exceptional as to warrant interference by this Court by exercising the power under Article 227 of the Constitution of India, relies on a decision of the Supreme Court in Shalimar Chemical Works Limited v. Surender Oil and Dal Mills (2010) 8 SCC 423. In the said case, the Supreme Court considered the marking of xerox copies by the trial Court as a serious mistake and it held that the trial court should not have marked as exhibits, the xerox copies of the certificates of registration of trade mark, in the face of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riginals of which would be with the respondent. Hence, the order of the Court below to the extent of admitting those documents can be sustained. With regard to the other documents, the counsel for the petitioner submits that the originals are never in possession of the respondent and hence, the copies of the same cannot be marked. But the counsel for the respondent submits that documents at Sl. Nos. 2, 4, 8, 9, 11, 12, 14 and 15 also can be received in evidence as they are the documents, the copies of which would be with the respondent. Though the counsel for the petitioner opposes the said contention saying that the originals of the letters addressed to the respondent by Shambolisugars Ltd. would be with Shambolisugars Ltd. and hence, the copies cannot be permitted, we see, that when it is a letter addressed to the respondent, it becomes the original letter containing the signature of Shambolisugars Ltd. and hence, the same can be permitted to be taken in evidence so also the bill of entry, the original of which would be with the petitioner. Hence, the documents at Sl. Nos. 2, 4, 8, 9, 11, 12, 14, 15, 17 to 19, 21, 24, 25, 27 and 29 can also be permitted to be taken in evidence. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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