RAFID UDDIN Vs. SK KORBAR UDDIN

JUDGEMENT

(1.) In this application under Article 227 of the Constitution of India the petitioner has sought for revision of the order being No. 96 dated 09.08.2005 passed by the learned Civil Judge (Sr. Div.), Second Court, Contai, Midnapore (East) in T.S. 23/2002 refusing to mark exhibits some certified copies of registered deeds of sale, gift and exchange, all said to be of more than 30 years old documents, on the basis of volumes produced from the office of concerned Registrars.

(2.) Mr. Mahato, learned counsel for the plaintiff/petitioner, on referring the cases of Kalyan Singh v. Smt. Chhoti, reported in AIR 1990 SC 396 and S. Mahimaidoss v. Vanathayya, reported in AIR 2000 Mad 288 (para 10) contended that there is a presumption under section 79 of the Evidence Act regarding correctness of certified copy referred to in clause (1) of section 63 of the said Act and a certified copy of a registered deed may be produced as secondary evidence in the absence of the original, and revision is maintainable against an order refusing to accept documents for marking exhibits. Mr. Dutta and Mr. Dash, learned counsel for the O.Ps., on the other hand, relying upon the case of Dr. Gurmukh Ram Modern v. Bhagwan Das Modem, reported in (1998)7 SCC 367 contended that the documents could be marked exhibits under clause (f) of section 65 of the Evidence Act only after offering explanation as to the non availability of the: original documents in an appropriate manner, and since such procedure was not complied with by the petitioners, the prayer of the petitioners was rightly rejected by the learned Court below.

(3.) Section 65 of the Evidence Act mentions seven cases in which secondary evidence of a document is admissible, of which clause (f) applies when the original is one of which a certified copy is permitted by the Evidence Act or by any other law in force. It would appear that all the clauses (a) to (g) of the said section 65 are separate and distinct. Exceptions (d), (e) and (f) are based on considerations of convenience. The party producing the secondary evidence is not relieved of his obligation to prove the execution just as if the original document had been produced, unless the case is covered by section 90 of the Act. Though raising of presumption in regard to the due execution and proof of a document under section 90 of the Act is discretionary, it was held in the case of Lakhi Baruah v. Padmo Kanta Kalita, reported in AIR 1996 SC 1253 that the presumption under section 90 does not apply to a certified copy though thirty years old, but if a foundation, is laid for the admission of secondary evidence under section 65 of the Evidence Act by proof of loss or destruction of the original and the copy which is thirty years old is produced from proper custody', then only the signature authenticating the copy may under section 90 be presumed to be genuine. In this case the present case may be distinguished from the above decision in that here production of copy is not involved. Nevertheless, in a later case it was observed that where a case for admission of secondary evidence is made out, a registration certified copy of a particular deed is admissible without any further proof, and in the case of registration copies what is applicable is not section 90 but section 57(5) of the Registration Act. In the case of a certified copy of a registered document, whether ancient or not, it would be competent to the Court to hold under section 60(2) Registration Act that the execution of the document had been admitted and the other things were in order. In this connection, reference may be made to the cases of Abdul M. Chhaganlal v. Municipal Corporation, Surat, reported in AIR 1978 Guj 193 and Irudayam Ammal v. S. Mary, reported in AIR 1973 Mad 421 which stand for the proposition that where: a document is registered, then although its mere registration may not by itself constitute sufficient proof of the execution of the document, in view of sections 57 and 60 of the Registration Act, the certified copy and the certificate issued by the Registrar would constitute sufficient evidence to prove the contents of the document and also to some extent an evidence of the execution of the document.