SRIKRISHNA ESTATE Vs. NETRANANDA BHOI

JUDGEMENT

(1.) This petition challenges the order dated 11.7.2016 passed by the learned Civil Judge (Sr.Division), Bhubaneswar in C.S.No.688 of 2008. By the said order, the learned trial court allowed the application of the plaintiffs to admit the photostat copy of the agreement dated 13.3.2017 as exhibit.

(2.) The opposite parties as plaintiffs instituted the suit for declaration that the registered sale deed no.6011 dated 30.5.2007 executed by defendant no.1 in favour of defendant no.2 is illegal, invalid, void and inoperative, declaration of right, title, interest, possession and permanent injunction impleading the petitioners as opposite parties. Pursuant to issuance of summons, the defendants entered appearance and filed a written statement denying the assertions made in the plaint. While the matter stood thus, the plaintiffs filed an application on 27.1.2016 under Order 16, Rule 6 C.P.C. read with Section 65 of the Indian Evidence Act praying for a direction to defendant no.1 to produce the original agreement dated 13.3.20017, which is in his possession so as to admit the photostat copy thereof as secondary evidence. It is stated that defendant no.1 had obtained the agreement for sale. He kept the original with him and handed over a photostat copy of the same to the plaintiffs. They have filed the photostat copy in the Court. Unless the original document, which is under the custody of defendant no.1, is filed, the secondary copy thereof is not admissible. Thereafter the plaintiffs filed an application on 19.3.2016 praying to admit the photostat copy of the agreement dated 13.3.2007. It is stated that the photostat copy, which is filed in the court, being a copy obtained in mechanical process is admissible as secondary evidence. The defendants filed objection stating therein that though no agreement was executed between the defendants with plaintiff no.1, but then the plaintiffs instituted the suit basing upon the agreement which is not in existence. They denied that the Managing Director of defendant no.1 obtained the agreement for sale, kept the original with him and handed over a photostat copy to the plaintiffs. It is specifically stated that photostat copy of the so called agreement is forged one and manufactured for the purpose of this case. The learned trial court came to hold that when the plaintiffs have laid foundation to lead the secondary evidence of the agreement for sale dated 13.3.2007 by way of photostat copy, they are at liberty to mark the same as secondary evidence particularly when the signatures of the plaintiffs are admitted on it. Held so, it allowed the application.

(3.) Mr. Mohapatra, learned Advocate for the petitioners submitted that Section 65 of the Evidence Act permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned therein. The secondary evidence of the contents of a document cannot be admitted without non-production of the original. The foundation must be laid by a party for leading secondary evidence in the shape of photostat copy. The assertion of the defendants is that the agreement for sale dated 13.3.2007 has not seen the light of the day. The photostat copy filed in the court is a fabricated one. In view of the same, the learned trial court is not justified in permitting the plaintiffs to mark the photostat copy as exhibit.