MUTHU VENKATARAMA REDDIAR Vs. VARDARAJA KOUNDER

JUDGEMENT

(1.) THE first defendant is the petitioner. The suit is for declaration of the plaintiff's title to the suit property and for recovery of possession under a sale deed dated 9 -7 -1965 executed by Sivaprakasa and an exchange deed Ex. A. 2. The first defendant resisted the suit on the ground that he is in possession of the western half of the suit property, originally under a usufructuary mortgage dated 23 -6 -1962 and later an agreement of sale by Sivaprakasa in his favour dated 22 -8 -1964. The first defendant contended that the agreement of sale was reduced to writing on stamp papers supplied by the vendor Sivaprakasa, that one Ratnasabapathi Pillai wrote the said agreement, that one Ramalingam had attested it, that he purchased stamp papers in his name for completing the sale transaction, that he gave them to the vendor Sivaprakasa to get the sale deed written up on the stamp papers, that Sivaprakasa, instead of completing the sale transaction, sold the suit property to the plaintiff, and that, therefore, the plaintiff being a subsequent vendor has no title to the suit property.

(2.) UNDER Section 61 of the Evidence Act, the contents of documents may be proved either by primary or by secondary evidence. What is primary or by secondary evidence. What is primary and secondary evidence, is explained in Section 62 and Section 63 respectively. Section 64 provides for proof of the contents of documents only by primary evidence, by production of the documents themselves, except in case falling under Section 65 and 66. The result is that, when the primary evidence is not available, proof by secondary evidence is permissible. Under what circumstances secondary evidence is permissible, is contained in the seven cases enumerated in Section 65. We are here concerned with S. 65(a) which runs: -

(3.) IN the present case, the vendor who sold the property both to the plaintiff and the first defendant is common and he is not a party to the suit. The first defendant's case is that the agreement in question was given to the vendor. The vendor is subject to the process of the court below. But, he not being a party to the suit, the question for consideration is whether he is bound to produce the agreement in question. Technically speaking, in one sense every person summoned to produce a document is bound to produce the same. The plaintiff who purchased the same property from Sivaprakasa, does not evidently want the document to be produced in evidence which,. when produced, may weaken his case. In the circumstances of the case, oral evidence as to the contents of the agreement could be given, when the first defendant issues notice under Section 66 to Sivaprakasa and he fails to produce the same. The order of the court below excluding oral evidence is wrong, and it is hereby set aside. The civil revision petition is allowed. There will be no order as to costs.