Judgment:
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 09.06.2014 CORAM THE HONOURABLE MR.JUSTICE T.MATHIVANAN C.R.P.(MD)No.579 of 2014 & M.P.(Md.No.1 of 2014 Sumathi @ Jesinthal .Petitioner versus Senthamarai .Respondent PRAYER Civil Revision Petition is filed, under Article 227 of the Constitution of India, to call for the records relating to the fair and decreetal order, dated 10.12.2013 and made in I.A.No.144 of 2013 in O.S.No.42 of 2010 on the file of the Additional Sub-Court, Kumbakonam, and set aside the same.
!For Petitioner : Mr.B.Jameel Arasu ^For Respondent : Mr.V.Achuthan :ORDER
This memorandum of Civil Revision Petition has been directed against the fair and decreetal order, dated 10.12.2013 and made in I.A.No.144 of 2013 in O.S.No.42 of 2010 on the file of the Additional Sub-Court, Kumbakonam.
2.The Revision Petitioner herein is the defendant, whereas, the respondent herein is the plaintiff in the suit in O.S.No.42 of 2010.
3.The above civil suit has been filed by the respondent/plaintiff as against the revision petitioner/defendant, seeking the relief of recovery of possession and also for the past mesne profits.
Prior to this suit, the revision petitioner/defendant had filed another suit in O.S.No.173 of 2007 on the file of District Munsif Court, Valangaiman at Kumbakonam.
Thereafter, this suit was transferred to the District Munsif Court, Kumbakonam, on the ground of territorial jurisdiction and subsequently, it was taken on file and re-numbered as O.S.No.710 of 2009.
Then, a petition was filed before the District Court, Thanjavur, to transfer the above said suit i.e., O.S.No.710 of 2009 to the file of Additional Subordinate Court, Kumbakonam, to be tried along with the present suit.
Accordingly, both the suits have now been consolidated together and joint trial is commenced.
Under this circumstance, the respondent/plaintiff has marked Ex.A12 on her side, which was vehemently objected to by the revision petitioner/defendant on the ground that in the absence of any reference with regard to Ex.A12 in the plaint, the respondent/plaintiff is not entitled to mark this document on her behalf without following the proper procedure.
Therefore, the revision petitioner/defendant has taken out an application in I.A.No.144 of 2013 under Order 13 Rule 3 and r/w.
Section 151 of C.P.C., to reject the above said document, viz., Ex.A12.
This petition was vigorously resisted by the respondent/plaintiff and after hearing both sides, the learned trial Judge, viz., the Additional Subordinate Judge, Kumbakonam, has dismissed the petition, on 10.12.2013.
Against which, the present revision petition has been filed by the revision petitioner/defendant.
4.Heard, Mr.B.Jameel Arasu, learned counsel appearing for the revision petitioner and Mr.V.Achuthan, learned counsel appearing for the respondent.
5.The revision petitioner was given in marriage to one Sivakumar.
When both of them were belonged to Christianism, their marriage was solemnized as per the customs of Christian religion.
Thereafter, both of them had embraced Hinduism and their conversion into Hinduism from Christianism was taken place in the presence of the General Secretary, Arya Samaj (Central).Madras.
Their names have also been changed in pursuant to their conversion.
Before their conversion, the revision petitioner's husband's name was 'Arockiyadoss'.
After conversion, his name was changed as Sivakumar.
Similarly, before the conversion, the revision petitioner's name was Jesinthal and after her conversion, her name was changed as Sumathi.
The original certificates of conversion are within the possession of the revision petitioner/defendant.
For the purpose of establishing the fact, a notice was caused to be issued to the revision petitioner/defendant under Order 12 Rule 8 of C.P.C., to produce the production of original conversion certificate.
That notice was issued on 13.09.2012 and also marked before the trial Court.
According to the respondent/plaintiff, till the date of marking of Ex.A12, i.e., the secondary documentary evidence of their conversion certificate, no objection was raised on the behalf of the revision petitioner.
Even after the receipt of the notice, the revision petitioner/defendant had not chosen to produce the original of the conversion certificate.
The respondent/plaintiff, in his affidavit, which was filed along with the application to receive Ex.A12, has stated that the original of Ex.A12 was within the possession of the revision petitioner/defendant, but no objection was raised on her behalf, when Ex.A12 was marked .
Only after marking Ex.A12, i.e., xerox copy of the original conversion certificate, the revision petitioner/defendant has come forward with this application under Order 13 Rule 3, to reject the document under Ex.A12 on the ground of inadmissibility.
6.It was argued on behalf of the revision petitioner that when the original document is not produced before the trial Court after issuance of notice to cause it's production, adveRs.inference could alone be drawn, instead the xerox copy of the said document could not be marked.
This point has been considered by the learned trial Judge and he has subsequently, rejected the application, which does not require any interference of this Court.
7.Section 65 of the Indian Evidence Act (hereinafter referred to as the Act) contemplates the 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 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.
8.Section 65 of the Act explains the circumstance under which, the secondary evidence may be given.
In the case on hand, as rightly argued by the learned counsel appearing for the respondent/plaintiff that when the notice was given to the revision petitioner/defendant to cause the production of Ex.A12, neither she had replied nor had produced the original of the said document or raised any objection till the marking of Ex.A12, being the xerox copy of the Conversion Certificate.
It is not the case of the revision petitioner/defendant that she is not in possession of the original of the conversion certificate.
The only contention raised on her behalf is that even after the notice since the revision petitioner/defendant had not produced the original of the conversion certificate an adveRs.inference alone could be drawn and that the xerox copy of the original could not be marked as the secondary evidence.
9.The contention raised on behalf of the revision petitioner/defendant is not discernible.
In this connection, it is imperative on the part of this Court to make reference to the provisions of Section 66 of the Act.
Section 66 of the Act reads as under:- 66.Secondary evidence of the contents of the documents referred to in Section 65(a).shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to his attorney or pleader, such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case: Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it:- (1)when the document to be proved is itself a notice; (2)when, from the nature of the case, the adveRs.party must know that he will be required to produce it; (3)when it appears or is proved that the adveRs.party has obtained possession of the original by fraud or force; (4)when the adveRs.party or his agent has the original in Court; (5)when the adveRs.party or his agent has admitted the loss of the document; (6)when the person in possession of the document is out of reach of, or not subject to, the process of the Court. As per Section 66 of the Act, the general principle is that a notice must be given before the secondary evidence could be received under Section 65(a).Notice to produce a document must be in writing.
Order XI, Rule 15 of C.P.C., prescribes the kind of notice to produce a document.
Notice under this Section has to be given to the party in whose possession or power the document is.
The word 'party' means not only the adversary but also a stranger 'legally bound to produce' the document.
The procedure for the production of documents in Criminal Cases is laid down in Sections 93-96 of Cr.P.C.While Section 65(a) refers to secondary evidence of the existence, condition or contents of a document this Section refers only to 'contents' and not the existence or condition of the document.
10.As observed in Surendra Krishna Roy versus Mizra Md.Syed Ali reported in AIR1936PC15 63 IA85 92, the object of the said Rule is to give the party an opportunity to enable him to produce the document and to secure the best evidence of its contents.
In order to adduce secondary evidence of documents mentioned in Section 65(a) of the Act, it is essential that the procedure laid down in Section 66 of the Act should be strictly complied with.
When no notice, as required by Section 66 of the Act, has been given, secondary evidence is not admissible.
In the instant case, the procedure laid down in Section 66 of the Act, has been followed by the respondent/plaintiff and only thereafter, in the absence of any response or objection on the part of the revision petitioner/defendant, Ex.A12 xerox copy of the original Conversion Certificate was tendered to be marked on behalf of the respondent/plaintiff, which need not be rejected or set aside, as requested by the revision petitioner/defendant.
11.In view of the above fact, this revision petition is dismissed, confirming the order of the trial Court.
No costs.
Consequently, the connected Miscellaneous Petition is also dismissed.
To The Additional Sub-Court, Kumbakonam.