K. ABHUTHAKIR Vs. G.K. THANGAVEL

JUDGEMENT

(1.) The Civil Revision Petition has been filed under Article 227 of the Constitution of India praying for to set aside the fair and decreetal order dtd. 21/12/2020 made in I.A. No.2 of 2020 in O.S. No.175 of 2015 on the file of the IV Additional District and Sessions Court, Coimbatore.

(2.) The case of the petitioner is that the suit in O.S.No.175 of 2015 has been filed on the file of the District Judge, Coimbatore, by the plaintiff/petitioner herein for recovery of money based on the alleged mortgage. The mortgage deed was executed by the defendant/respondent herein in favour of the plaintiff/petitioner herein for borrowing the money. During the Trial, when the matter was posted for examination of the defendant side witness, the defendant/respondent herein has taken a specific stand that he did not borrow any money from the plaintiff/petitioner herein. One Eswari has borrowed money and she has given her title deed and the said title deed has been replaced by giving his title deed for which the plaintiff's brother i.e, Khader Hussain has given an undertaking by his own hand-writing in Rs.20.00 stamp paper dtd. 30/12/2013. The said original was not given to the defendant/respondent herein. Therefore, copy of the said undertaking is available with the defendant/respondent herein which was filed along with the written statement. In order to produce original to mark on the side of the defendant side, the said Khader Hussain who is the brother of the plaintiff/petitioner herein failed to produce original undertaking, in spite of the summons issued by the Court below. The plaintiff/petitioner herein and his brother colluded together with intention to prevent the defendant/respondent herein to produce original documents and evaded the service. The plaintiff and his brother managed to return the summons as if the said Khader Hussain is not available in the address mentioned in the undertaking letter dtd. 30/12/2013. As there is no alternative remedy, the defendant/respondent herein has filed I.A. 2 of 2020 in O.S. No.175 of 2015 under Sec. 151 CPC on its file seeking for to mark secondary evidence viz., xerox copy of the undertaking letter dtd. 30/12/2013 executed by plaintiff's brother Khader Hussain in the defendant's favour. The same was allowed by order dtd. 21/12/2020. Being aggrieved by the aforesaid order, the plaintiff/petitioner herein has filed the present Civil Revision Petition to set aside the same.

(3.) The learned counsel for the petitioner would submit that the xerox copy of the document cannot be allowed as evidence for any purpose to mark even as secondary evidence which is not emanated from the correct origin and the marking of xerox copy of the document is nothing but collecting the piece of unwanted evidences which does not have evidential value. Though the proof and relevancy of the document can be considered at the time of Trial, but the Xerox copy of the document cannot be marked at all, as does not arise from a proper origin. He further submitted that the defendant/respondent herein failed to follow the condition stipulated in the order 16 of CPC and the said application could not be maintainable in view of Ss. 63, 65 and 66 of Indian Evidence Act. The xerox copy is no way connected and relevant to decide the present suit. Hence, the defendant/respondent herein cannot be allowed to mark the said document. Without considering the aforesaid aspects, the Court below has allowed the said interlocutory application stating that mere marking of document is not sufficient and it should be proved through by way of examining other evidences and copy was marked on the side of the petitioner/defendant subject to the proof of relevancy. When the proposed document is not relevant to the suit, the Trial Court ought to have dismissed the application filed by the defendant/respondent herein. Hence, this Court may be pleased to set aside the order dtd. 21/12/2020 passed by the Court below.