SRINIVASA NAICKER Vs. KALIAPPAN

JUDGEMENT

(1.) The First Defendant in O.S. No. 297 of 2010 on the file of the Principal District Munsif Court, Sankarankovil, is the Revision Petitioner. The First Respondent/Plaintiff filed the above Suit for declaration that the second schedule property is a common pathway belonged to the parties and for injunction. After the commencement of trial when PW 2 was in the box, the First Respondent/Plaintiff filed an Application under Order 7, Rule 14(3) of Code of Civil Procedure, to condone the delay in filing the Application and another I.A. No. 96 of 2011 under Order 14, Rule 3, C.P.C. to receive the document after condoning the delay and I.A. No. 937 of 2011 to mark the document as the secondary evidence and these Applications were allowed and aggrieved by the same, these Civil Revision Petitions are filed. Mr. S. Meenakshi Sundaram, learned Counsel for the Revision Petitioners submitted that the document sought to be marked is an unregistered and un-stamped document and the First Respondent produced the Xerox copy and therefore the said document cannot be received in evidence and cannot be marked. He further submitted that there was no reference to the document in the Plaint filed by the First Respondent and though it was mentioned in the list of documents in the Plaint, the First Respondent has not stated with whom custody of the document was available and in the list of documents filed under Order 7, Rule 14(1) & (2), he has mentioned the said document as the original and that would also prove that he was having original with him and without producing the original and without giving any explanation for non production of original, he wanted to file the Xerox copy and mark the same which was not permissible. He further submitted though a Memo was filed by the First Respondent/Plaintiff asking the Revision Petitioner to produce the document, as per Order 11, Rule 15, C.P.C. every party to a Suit is entitled to give notice to any other party, to produce such document for the inspection of the party and to permit him to take copies thereof and that can be done before the settlement of issue and in this case trial has commenced and therefore, the Memo has no legal value and the Application cannot be allowed on the ground that the Memo was filed directing the Revision Petitioner to produce the document and thereafter the Revision Petitioner did not produce the same and therefore, the First Respondent was entitled to produce the document at a later point of time. He, therefore, submitted without explaining the reason for the omission to file the document along with the Plaint the Court below ought not to have received the document and having regard to the nature of the document, the same cannot be received in evidence.

(2.) I am unable to accept the contention of the learned Counsel for the Revision Petitioner. The Suit was filed for declaration that the second schedule pathway was a common pathway. No doubt, the document which was sought to be produced by the First Respondent at the later point of time was not mentioned in the body of the Plaint. But in the Plaint while stating the documents filed along with the Plaint or to be filed later, the document was mentioned as Document No. 3 and the Plaintiff/First Respondent herein did not categorise the documents under Order 7, Rule 14(1) & Order 7, Rule 14(2), C.P.C. Order 7, Rule 14(1), the Plaintiff has to state the documents which are filed along with the Plaint and under Order 7, Rule 14(2), C.P.C. the Plaintiffs has to state the documents which are not in his possession and also state in whose possession or power the documents are available. As statedin the Plaint documents were mentioned and they were not categorized under Order 7, Rule 14(1) & (2) and it was only stated that the documents were filed under Order 7, Rule 14(1) & (2), C.P.C. Though it was mentioned that the document which was sought to be filed later was original, it is the specific case of the First Respondent that the original document was original and it was in the custody of the Revision Petitioner and therefore he filed a Memo directing the Revision Petitioner to produce the original document. When the Revision Petitioner denied the existence of the said document in his reply to the Memo, the First Respondent filed an Application in I.A. No. 937 of 2011 for production of document by condoning the delay. Whether the document is a genuine one, binding on the Revision Petitioner can be can be decided only during the trial. The objection of the learned Counsel for the Revision Petitioner was that there was no mention about the document in the Plaint and the original was not produced and therefore the Xerox copy cannot be marked and the document also requires registration and inadmissible in evidence as per the provisions of the Stamp Act. It is not necessary that in the Plaint reference has to made in respect of all the documents that may be produced by the Plaintiffs at the later point of time and therefore, merely because there was no reference to the document which was sought to be relied upon by the Plaintiff later, the document cannot be eschewed from consideration. Further, the Plaintiffs father was one of the parties to the said document and therefore, the document can be marked only through him who was examined as PW 2. Therefore, at the time of examination of PW 2, Memo was given to the Revision Petitioner to produce the original and when the Original Petitioner denied the existence of the document, a copy of the document was sought to be produced and marked on the side of the First Respondent. The provisions of Order 11, Rule 15, C.P.C. cannot be applied to this case as the First Respondent did not want to mark the documents which was mentioned in the statement filed by the Revision Petitioner. A reading of the Order 11, Rule 15, C.P.C. makes it clear that when a reference is made to any document in the pleading or Affidavit by one party, the other party to that Suit is entitled to, on or before settlement of issues to give notice to that party who mentioned about the document in his pleadings, to produce such document.

(3.) In this case, in the Written Statement or in the Affidavit or in the pleadings of the Revision Petitioner he has not mentioned about the compromise alleged by the First Respondent and therefore the Order 11, Rule 15, C.P.C. cannot be applied. Therefore, the contention of the learned Counsel for the Revision Petitioner that without complying with the Order 11, Rule 15, C.P.C. the Application filed by the First Respondent is not maintainable cannot be accepted. As the document was not referred to by the Revision Petitioner and it was the case of the First Respondent that the original was with the Revision Petitioner and he was having only Xerox copy, he filed the Memo for production of original and in that context Order 11, Rule 15, cannot be applied. Further under Section 65 of the Indian Evidence Act, 1872, secondary evidence may be given when the original was shown or appeared to be in the possession or power of the person and the other person after the notice mentioned in Section 66, did not produce the same. Under Section 66 of the Act, secondary evidence of the contents of the documents can 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, to produce such document. In this case, a Memo was filed directing the Revision Petitioner to produce the original of the document and the Revision Petitioner denied the existence of the document and therefore, the First Respondent has complied with the provisions of Section 66 of Indian Evidence Act and therefore, he is entitled to mark the said document as secondary evidence. Considering all these aspects, the Court below allowed those two Applications and I do not find any infirmity in the order of the Court below. Nevertheless, if the document requires registration or liable to Stamp duty, the same can be considered by the Court below, while the document is to be marked in evidence. With the above observations the C.R.P. (PD)(MD) No. 556 of 2012 is dismissed and the C.R.P. (PD)(MD) No. 557 of 2012 is disposed of. No costs. Consequently, connected Miscellaneous Petition is also dismissed.