Kabita Bose Vs Timir Baran Haldar

Kalyanmoy Ganguli, J.@mdashThis application u/s 115 of the CPC is directed against order No. 83 passed on October 4, 1991 by the learned Munsif, Fifth Court, Alipore, in Misc. Case No. 48 of 1990 arising out of Title Execution Case No. 50 of 1968.

2. The Petitioner was the judgment-debtor tenant in an eviction suit instituted by the successor-in-interest of the opposite parties landlords.

3. The predecessor-in-interest of the opposite parties filed in a Title Suit being No. 327 of 1976 in the Fifth Court of Munsif at Alipore for the eviction of the Petitioner. The Title Suit decreed, upto the stage of the Hon''ble Supreme Court and the Petitioner lost although out.

4. Thereafter, the opposite parties initiated a Title Execution Case No. 50 of 1986 for execution of the decree obtained in the said Title Suit No. 327 of 1976.

5. In the said Title Execution Case, the Petitioner filed a petition u/s 47 of the CPC which was registered as Misc. Case No. 48 of 1990 and in connection with the said Misc. Case, the Petitioner filed an application for being allowed to produce a xerox copy of the certified copy of a document. The said application of the Petitioner was rejected by the impugned order against which the present revisional application has been made before this Court.

6. It is not necessary to go into all the facts raised and contended by the parties in this revisional application. It is true that the learned Munsif in the impugned order has made certain remarks which may not be tenable in law, but the main question centres round two points, namely, whether the question of title can be gone into in execution proceedings, and whether a xerox copy of a certified copy of an original document can be admitted into evidence.

7. So far as the first point is concerned it is now settled law that the question of title, in order to prove that the decree is a nullity, can be gone into even in execution proceedings and it is not necessary to discuss the case laws on this point as the section itself, namely, Section 47 read with Order 21 Rule 97 and specially Order 21 Rule 101 clinch the issue.

8. It is the second point which needs some consideration. It was sought to be argued, on a citation of a few cases at the Bar, that such evidence may be admissible in evidence.

9. Mr. Shyamaprasanna Roychoudhury, learned Advocate appearing for the Petitioner, cited a number of decisions including the decisions in AIR 1944 11 (Privy Council) Sibapada Roy Chowdhury Vs. Sudhangsu Kumar Sen, , Sm. Santilata Paul Vs. Nanda Kishore Mukherjee, and Laxmipat Choraria and Others Vs. State of Maharashtra, . The cases of Sibapada and Santilata deal with the raising of question of title in the execution proceeding regarding which it has already been cited hereinbefore that the law is now settled that such question can be raised in execution proceedings. The other two cases deal with the admissibility of evidence of copies of documents.

10. The learned Court below was wrong in holding that before considering the admissibility of evidence the Court''s duty is first to consider the relevancy of the evidence concerned. I am afraid that the reverse is the proposition of law, namely, the admissibility of a document has nothing to do with the relevancy of document. If a document is not admissible in law its relevancy is immaterial. On the contrary, if a document is admissible only then the question of relevancy of such evidence or the probative value of such evidence will be taken into consideration.

11. Be that as it may, in this revisional application we are to consider as to whether a xerox copy of the certified copy of a document can be admitted in evidence.

12. The Hon''ble Supreme Court in the case of Laxmipat Choraria and Others Vs. State of Maharashtra, on a consideration of a large number of cases, held that in the circumstances of that particular case a photograph, though not a primary evidence, is admissible in evidence. The said case is not of much help to the Petitioner as the circumstances of the said case were entirely different. In the said case the photograph concerned were of parties who were co-conspirators in a crime and the photographs were sought to be exhibited for the purpose of identification of the accused concerned.

13. Here in the instant case, the facts are entirely different. Section 63 of the Indian Evidence Act, 1972, defines secondary, evidence. The analogy of a xerox copy of a certified copy does not find place in any of the illustrations appended to the said section. Illustration (b) provides that a copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter if it is shown that the copy made by the copying machine was made from the original. Illustration (c) provides that a copy transcribed from a copy but afterwards compared with the original is secondary evidence, but the copy not so compared is not secondary evidence of the, original, although the copy from which it was transcribed was compared with the original.

14. In the instant case, the xerox copy which was obtained from a certified copy was not compared with the original and, as such, under illustration (c) it is expressly said to be inadmissible as. secondary evidence.

15. For the reasons stated above, it is to be held that the learned Court below was justified in rejecting the application for allowing the Petitioner''s application for introducing the said xerox copy of a certified copy of a document of transfer in the Misc. Case concerned in connection with the Title Execution Case referred to above.

16. In the circumstances, the application has no merit and fails. As such, the applications is rejected, all interim orders, if any, are vacated.

17. There will, however, be no order as to costs.