AMUTHA BEELLARMINE CORERA Vs. ELSIE VILLAVARAYER

JUDGEMENT

(1.) THESE Civil Revision Petitions have been filed by the petitioner herein, challenging the orders dated 25.08.2005 and 15.12.2005 made in I.A.Nos.362 & 555 of 2005 respectively in O.S.No.47 of 2005, on the file of the learned Additional District Munsif, Tuticorin.

(2.) BRIEF facts of the case are as follows:- The respondent in both the civil revision petitions has filed the suit in O.S.No.47 of 2005, against the petitioner herein on the file of the learned Additional District Munsif, Tuticorin, for declaration of easementary right of getting free flow of air and light through the second schedule property and for consequential injunction restraining the petitioner herein who is the defendant from interfering with the plaintiff's above right and for other related reliefs. The petitioner/defendant has filed a written statement before the lower Court and contested the suit. The petitioner herein examined herself as D.W.1 before the trial Court. At that point of time, an attempt was made to mark a xerox copy of the approved plan relating to the construction of the building on the suit property through her. Since it was opposed, the petitioner filed I.A.No.362 of 2005, to mark the xerox copy of the approved plan. The respondent/plaintiff filed a detailed counter in the said I.A., opposing the said move on the ground that the petitioner has not satisfied the requirements of Section 65 of the Evidence Act. After hearing both parties, the learned Judge held that the petitioner has failed to prove that the original document has been lost. On such conclusion, the learned Additional District Munsif has dismissed the I.A.No.362 of 2005, by an order dated 25.08.2005, refusing to allow the xerox copy of the document being marked in evidence. Challenging the said order dated 25.08.2005, made in I.A.No.362 of 2005, CRP No.172 of 2006 has been filed before this Court by the petitioner/defendant.

(3.) IT is contended by the learned counsel for the petitioner that the approved plan relating to the building in question is a very vital document to prove the facts and issues involved in this case. The learned counsel for the petitioner would further contend that for the purpose of marking a xerox copy, the petitioner has satisfied the conditions laid down in Section 63 as well as in Section 65 of the Evidence Act. He would further contend that for the limited purpose of marking the xerox copy, it is suffice for the petitioner to prove prima facie that original document was lost. Further, it is contended that regarding the correctness and validity of the document, it is for the respondent to agitate the matter at the appropriate stage during the trial of the suit. The learned counsel for the petitioner would conclude her argument stating that the trial Court ought to have allowed the petitioner/defendant to mark the xerox copy of the document as secondary evidence either through D.W.1 or through D.W.2.