@JUDGMENTTAG-ORDER
B. Manohar, J.@mdashPetitioners are the plaintiffs in O.S. No. 10704/2006 on the file of the XVII Additional City Civil Judge at Bengalum. Being aggrieved by the order dated 7-7-2012 made on I.A. No. 8 filed under Sections 65 and 66 of the Indian Evidence Act, the petitioners have filed this writ petition.
2. The petitioners had filed a suit seeking for partition and separate possession of 1/10th share each in the suit schedule property by metes and bounds. In the plaint, it was contended that the mother of the plaintiffs got the suit schedule property as per the agreement of sale on 28-06-1984. The original copy of the agreement of sale is with the second defendant and the plaintiffs have got only Xerox copy of the said document. It is the contention of the plaintiffs that they had also contributed for purchase of the suit schedule property and hence all the children of late K.A. Somaiah are entitled to their respective share in the suit schedule property. The plaintiffs have also filed an application I.A. No. 8 seeking permission to mark the Xerox copy of the agreement of sale as secondary evidence since they do not possess the original copy. The contesting defendants filed their objections to the said application and denied the existence of the agreement of sale and the Xerox copy of the said document cannot be marked. The Trial Court by its order impugned in this writ petition dismissed the said application. Being aggrieved by the said order, the present writ petition has been filed.
3. Learned counsel appearing for the petitioners contended that the order passed by the Trial Court is contrary to law. Pursuant to the agreement of sale, their mother got the ownership over the suit schedule property and hence all the children are entitled to 1/10th share each in the suit schedule property. Since the original copy of the agreement of sale is not available with them, they sought permission of the Court to produce the Xerox copy of the said document to mark it as secondary evidence under Sections 65 and 66 of the Indian Evidence Act. The order passed by Trial Court is contrary to law. Hence sought for allowing the writ petition by setting aside the order passed by the Trial Court.
4. On the other hand, the contesting respondents contended that the Xerox copy of the document cannot be marked in the evidence since the existence of the agreement of sale dated 28-06-1984 is in dispute. When the defendants have specifically denied the very existence of the said document, the question of producing the Xerox copy as secondary evidence does not arise. The plaintiffs are the elder members of the joint family, usually they would be in possession of the said document and the younger members may not possess the same. When the very existence of the agreement of sale is in dispute, permitting the plaintiffs to produce the Xerox copy of the said document does not arise. There is no infirmity in the order passed by the Trial Court and sought for dismissal of the writ petition.
5. I have carefully considered the arguments addressed by the learned counsel for the parties and perused the order impugned and other relevant records.
6. The records clearly disclose that the plaintiffs had filed a suit seeking for partition and separate possession of 1/10th share each in the suit schedule property mainly contending that pursuant to the agreement of sale dated 28-06-1984 executed by S.A. Subbegowda in favour of the mother of the plaintiffs, the plaintiffs are entitled for 1/10th share each. However, the defendants denied the existence of the agreement of sale. On the other hand, they contended that Subbegowda executed only the power of attorney in favour of the first and second defendants, on the basis of which, the 3rd and 5th defendants purchased the suit schedule property and Nanjamma has no right whatsoever in respect of the suit schedule property. In the suit, the plaintiffs wanted to mark the Xerox copy of the agreement of sale dated 28-06-1984 as secondary evidence. In view of that, an application I.A. No. 8 was filed invoking Sections 65 and 66 of the Indian Evidence Act to produce the Xerox copy of the agreement of sale as secondary evidence. The Trial Court rejected the said application solely on the ground that it is for the plaintiffs to produce the original agreement of sale since they are the elder members of the family and also held that the judgment relied upon by the plaintiffs in the case of Gafarsab @ Sati Gafar Sab v. Ameer Ahamed reported in ILR 2006 KAR 169 is not applicable to the facts of the case.
7. It is seen from the judgment relied upon by the petitioners that this Court in para 6 has clearly held as under:
"6. A party to the proceedings is not expected to file any application requesting the Court to permit him to lead the secondary evidence. All that is expected of him is to step into the witness box and lead evidence setting out the circumstances under which he is unable to produce the primary evidence. If the Court is satisfied from such evidence that a case is made out for production of secondary evidence, it can permit the party to adduce secondary evidence subject to Sections 63 and 65 of the Act. However, when such permission is granted to the party by the Court to lead secondary evidence, it is open to the opposite party to object to the production of such secondary evidence, in which event the Court has to mark the document subject to the objections and decide the objections at the time of final disposal of the suit on merits. In the event the objections is upheld the said documents and the evidence adduced in respect of the said documents may be ignored while deciding the case on merits. If the objection is over-ruled, the said documents and the evidence given in respect of the said documents can be taken into consideration while disposing of the case on merits. But, on the ground that the party who proposes to adduce secondary evidence has not disclosed from where, which authority he got the documents and whether the said documents are coming from a proper custody, the document cannot be refused to be received in evidence. It is totally irrelevant consideration at the time of admitting the documents in evidence. In that view of the matter, thought the application filed by the defendant is totally misconceived, the reasoning given by the learned trial Judge for not accepting the secondary evidence is also illegal. Hence, the aforesaid findings require to be quashed, reserving the liberty to the petitioner-defendant to lay a proper foundation by satisfactorily explaining the reason for not producing the primary evidence and thereafter he is at liberty to produce the secondary evidence which the Court may receive subject to the objections of the opposite party and decide the admissibility of the documents at the time of final disposal of the suit on merits."
8. In the instant case, at the threshold, the Trial Court has rejected the application for production of secondary evidence. The Trial Court has not considered the intendment of Sections 65 and 66 of the Indian Evidence Act and has not taken into consideration the judgment of this court referred to above. Hence the Trial Court is required to reconsider the matter afresh taking into consideration the law laid down by this court in the judgment cited supra. Hence, the order passed by the Trial Court cannot be sustainable. Accordingly, I pass the following:
ORDER
The writ petition is allowed. The order dated 07-07-2012 made on I.A. No. 8 in O.S. No. 10704/2006 is set aside and the matter is remanded to the Trial Court to reconsider the same afresh in the light of the judgment reported in ILR 2006 KAR 169 (Supra) and pass appropriate orders.
