admission of a signature on Photostat copy of a document. It is categorically observed therein that mere admission of a signature on Photostat copy of a document is not admission of the contents of the document and when originals are not produced at any time nor any factual foundation laid for giving secondary evidence, it is impermissible to allow party to adduce secondary evidence is also the further observation in relation to the proof of the contents of the document in this regard as already observed supra what is to be marked only a signature that too by making a mention that when the Xerox copy signature is confronted to the RW.1-witness on 21.12.2017, the witness answered that he identified the signature to be the same of his father and witness further added that this letter does not belong to him. whether it amounts to a clear admission or only a corroboration peace regarding the signature or it requires any corroboration from the other material is a matter of ultimate appreciation and so far as that marking of the signature concerned, the expression in Siddiqui supra also no way says even signature admitted on the Xerox copy it cannot be marked. Thus the order of the lower Court in not marking the disputed signature portion of the document to the above extent stated as that of his father is unjust, thereby set aside with a direction to the lower Court to mark that signature portion with the observation as indicated above.
HONBLE DR. JUSTICE B. SIVA SANKARA RAO
CIVIL REVISION PETITION No.1355 of 2018
02-04-2018
Sri Mohammed AleemuddinPetitioner
Sri Anney Vishwanath Rao died per L.R. Sri Sunil Kumar Anney.Respondent
Counsel for the petitioner:Sri Shyam S Agarwal
Counsel for the respondent: Sri Venkat Raghu Ramulu
<GIST:
>HEAD NOTE:
? Cases referred
1.AIR 1956 Bom 129
2.(2003) 8 SCC 752
3.(2004) 7 SCC 107
4.AIR 1994 SC 591
5.(2010) 8 SCC 423
6.AIR 2001 SC 1158
7.2017 (1) ALD 626
8.(2011) 4 SCC 240
HONBLE DR. JUSTICE B. SIVA SANKARA RAO
CIVIL REVISION PETITION No.1355 of 2018
ORDER:
The revision petitioner is the petitioner in R.C.No.391 of
2009 on the file of II Additional Rent Controller, Hyderabad, filed
under Section 10 of A.P. Buildings (Lease, Rent & Eviction) Control
Act, 1960 (for short the Act) for eviction of the respondent/tenant.
2. After the evidence of the petitioner in deciding the
contentious issues/points for determination, on behalf of
respondent, RW.1 was examined on 19 & 21.12.2017. The
relevant portion in the cross examination dated 21.12.2017
continuation of RW.1 i.e., RC.No.391 of 2009 respondent Sunil
Kumar Anney for the purpose of revision covered by the part of the
deposition of the witness during cross examination, which is in
fact the observation of the Court of the happening before it in that
course is that: The learned counsel for the petitioner confronted
the signature on the Xerox copy of the letter dated 20.05.2009 and
posed a question whether, he can identify the signature on the
bottom of the said letter (Xerox copy), then the witness answered
he identified the signature to be the same of his father, the witness
further adds that, this letter does not belong to him. Re-
examination nill.
3. The above observation of the Court of the happening
before it during cross-examination of RW.1 supra shows when a
Xerox copy of a letter containing a signature on the bottom with
the duly filled contents, when signature is confronted witness
answered of he identified the signature to be the same of his
father. The trial Court did not exhibit that signature even the
learned counsel for RW.1-respondent did not choose to seek any
further examination by re-examination of the witness for any
clarification, might be for the reason the witness added of this
letter does not belong to him.
4. Here two questions arisen in the revision to answer. One
is in such case a document petition is required to be filed as
contemplated by Rule 7 Clause (5) of the Rules framed under the
Act 1960.
7. (1) Every application under the Act shall in
addition to the particulars necessary to support it contain
also the particulars prescribed in Rule 3 so far as they may
be applicable and every application for eviction under
Section 10 shall also state the grounds on which the
application is made accompanied by the agreement of
tenancy, if any, rent receipt and a copy of the notice issued
to the tenant.
(2)..
(3)..
(4) The parties or their counsel shall produce, at the
first hearing of the case, all the documentary evidence of
every description in their possession or power on which
they intend to rely, and which has not already been filed,
and all documents which the Controller has ordered to be
produced, and the Controller shall receive the documents
so produced.
(5) No documentary evidence in the possession or
power of any party which should have been, but has not
been produced in accordance with the requirements of sub-
rule (4) shall be received at any subsequent stage of the
proceedings, unless good cause is shown to the satisfaction
of the Controller for the non-production thereof; and the
Controller receiving any such evidence shall record the
reasons for so doing.
(6) The Controller may at any stage of the case reject
any document which he considers irrelevant or otherwise
inadmissible, recording the grounds of such rejection.
(7) (i) Subject to the provisions of clause (ii), there
shall be endorsed on every document which has been
admitted in evidence in the case the following particulars,
namely:
(a) the number and title of the case.
(b) the name of the person producing the document.
(c) the date on which it was produced; and
(d) a statement of its having been so admitted; and
the endorsement shall be signed or initialled by the
Controller.
(ii) Where a document so admitted is an entry in a
book, account or record, and a copy thereof has been
substituted for the original under sub-rule (8), the
particulars aforesaid shall be endorsed on the copy and the
endorsement thereon shall be signed or initialled by the
Controller.
(8) (i) Save in so far as is otherwise provided by
Bankers Book Evidence Act, 1891, where a document
admitted in evidence in the case is an entry in a letter-book
or a shop book or other account in current use, the party
on whose behalf the book or account is produced, may
furnish a copy of the entry.
(ii) Where such a document is an entry in a public
record produced from a public office or by a public officer or
an entry in a book or account belonging to a person other
than a party on whose behalf the book or account is
produced, the Controller may require a copy of the entry to
be furnished:
(a) where the record book or account is produced on
behalf of a party, then by that party; or
(b) where the record book or account is produced in
obedience to an order of the Controller acting of his own
motion, then by either or any party.
(iii) Where a copy of an entry is furnished under the
provisions of clauses (i) and (ii), the Controller shall, after
causing the copy to be examined, compared and certified,
make the entry and cause the book, account or record in
which it occurs, to be returned to the person producing it.
(9) Where a document relied on as evidence by either
party is considered by the Controller to be inadmissible in
evidence, there shall be endorsed thereon the particulars
mentioned in clauses (a), (b) and (c) of clause (i) of sub-rule
(7), together with a statement of its having been rejected
and the endorsement shall be signed or initialled by the
Controller.
(10) (i) Every document which has been admitted in
evidence, or copy thereof, where a copy has been
substituted for the original under sub-rule (8), shall form
part of the record of the case.
(ii) Documents not admitted in evidence shall not
form part of the record and shall be returned to the persons
respectively producing them.
(11) Notwithstanding anything in sub-rule (8) or sub-
rule (10), the Controller may, if he sees sufficient cause,
direct any document or book produced before him in any
case to be impounded and kept in his custody for such
period and subject to such conditions as he think fit.
(12) (i) Any person, whether a party to the case or not
desirous of receiving back any document produced by him
in the case and placed on the record shall, unless the
document is impounded under sub-rule (11), be entitled to
receive back the same:
(a) where the case is one in which an appeal is not
allowed when the case has been disposed of; and
(b) where the case is one in which an appeal is
allowed, when the Controller is satisfied that the time for
preferring an appeal has elapsed and that no appeal has
been preferred or, if an appeal has been preferred, when the
appeal has been disposed of :
Provided that a document may be returned at any
time earlier than that specified by this sub-rule if the
person applying therefor delivers to the Controller a
certified copy to be substituted for the original and
undertakes to produce the original, if required to do so:
Provided further that no document shall be returned
which, by force of the order of the Controller, has become
wholly void or useless.
(ii) On the return of a document admitted in
evidence, a receipt shall be given by the person receiving it.
5. From the above mainly concerned with clause 5 supra
unless the cause is shown to the satisfaction of the Rent Controller
for non-production of the document in possession or power of a
party that has not been produced earlier, if at all to receive reasons
to be recorded for receiving. The second question is once the
witness in the course of cross-examination when confronted with a
document without even filed earlier as contemplated by the Rule
supra if witness admits any portion of it can the Court refuse
including to say it is only a secondary evidence without foundation
to the existence of original or a petition as contemplated by Rule
7(5) supra still required. The wording of Rule 7(5) supra is relevant
for the purpose is reproduced herein. Same is silent regarding the
requirement or not of a petition if confronted by other side during
the course of cross examination.
6. From the above, though the Rules framed under the Act
are the special law governing the procedure right from time of filing
till termination of the proceedings before the Rent Controller, once
the rules are silent regarding any particular or specific procedure,
the general provisions of CPC and Indian Evidence Act are
applicable cannot be disputed. It is the age old practice recognized
from the decisions of several High Courts including vividly by the
expression of the Bombay High Court in Melappa and another Vs.
Guramma and Others , that in the course of cross-examination to
confront with a witness a document petition earlier to be filed is
not contemplated, but for to say if the witness admits the
document, it is to be marked by filing the same with memo by
supply copy to the other side and if not admitted, the document
cannot be received to the file, but for to drive the party to file with
a petition if at all. The same is culminated into a statutory
provision under CPC more particularly from Order 13 Rule 2(2)
CPC prior to the CPC amendment in 2002 which say the following
documents need not be produced by a party where the document
produced for the cross examination of witness or witness of
opposite party, the documents which are handed over to witness to
refresh his memory. Refreshing of memory is contemplated by
Section 159 of the Evidence Act which speaks a witness may, while
under examination, refresh his memory by referring to any writing
made by himself at the time of the transaction concerning which
he is questioned, or so soon afterwards that the Court considers it
likely that the transaction was at that time fresh in his memory.
The witness may also refer to any such writing made by any other
person, and read by the witness within the time aforesaid, if when
he read it he knew it to be correct..
7. As per CPC amendment incorporating for the plaintiffs
belated filing of the documents contemplated by Order 7 Rule 14
and of the defendants belated filing of the documents covered by
Order 8 Rule 1-A specifically sub Rule 4 contemplating in both the
provisions a kin to earlier Order 13 Rule 2 referred supra of in the
course of cross examination when confronted to a witness earlier
filing of document petition for the belated filing is not required.
8. Thus though the Rent Control Act 1960 Rule 7 is silent,
such recourse has arisen in the case referred supra. Once the
provisions of the Evidence Act and CPC taken care as the general
procedure and the Rules of Evidence that apply same has to be
applied. Thus for the purpose once the witness admits to any
extent, leave about such evidentiary value of the witness as part of
the ultimate appreciation by the Court has to rely from its
relevancy fully or by requiring corroboration or to serve as peace of
corroboration to any other substantive peace of evidence. It is
premature for not a stage to appreciate while marking more
particularly from the fact that mere marking of a signature is not
marking of a proof of the contents of the document; the contents
are to be proved otherwise. Once the signature is marked, which
is portion of the document from which it contained it is to be made
clear that again filing of the petition to receive as secondary
evidence with foundation to the primary evidence may not arise,
but for to say if at all contents are chosen to prove foundation
required to lay for the existence of the original for adducing
secondary evidence required. Here it is not the stage nor
necessary to discuss further, but for to say so far as that signature
concerned, once admitted there is no further proof to the extent of
its admission for marking concerned, even that document
containing signature is not primary but secondary being Xerox
copy of document. Once a document admitted for marking even it
is a copy and no foundation laid of its original in existence, it is
only a procedural aspect and subsequent objection regarding its
marking cannot be raised is the law well settled by the Apex Court
in RVEV Gounder Vs. Arulmigu Viswesaraswami & V.P Temple ,
the same is quoted with approval by another bench of the Apex
Court in Dayamati Bai Vs. KM Shafi .
9. The learned counsel for the revision respondent drawn
attention of the Court to a three judge bench expression of the
Apex Court in Government of A.P. Vs. Karri Chinna Venkata
Reddy with reference to Sections 62 & 63 of the Evidence Act that
an objection as to tampering of record and fictitious nature of
document even not raised genuineness of the document once
fundamental question, copy should have been accepted in evidence
after examining original record was the conclusion therein. Here if
the other side objects to the marking, comparison arises. Once
other side admits to the marking, question of production of original
or comparison with original does not arise more particularly what
is laid down by the Apex Court in RVEV Gounder and Dayamati
supra. No doubt the other expression placed reliance is Shalimar
Chemical Works Limited Vs. Surendra Oil and Dal Mills
(Refineries) and Others referring to Order 13 Rules 3 & 4 CPC of
the procedure saying where secondary evidence regarding
registration certificate of the trade mark registration of the entity
raised the Court differing the same without instantaneously
deciding of the same is observed as depreciable in fact. In
Shalimar supra, the three judge expression of the Apex Court in
Bipin Shantilal Panchal Vs. State of Gujarat not brought on
record where it is the observation that unless it is on stamp duty
and registration any objection regarding the nature of document or
proof, relevancy and admissibility etc., shall be decided ultimately
rather than deciding instantaneously by the archaic practice that
gives life to the litigation of maintaining revisions from said giving
of observation and thereby directed all Courts to follow the
procedure to mark subject to objection and decide only ultimately
at the final hearing. In view of the same as observed in Kaitha
Narsinga Rao Vs. Kodi Supriya and another , the Shalimar
supra is hit by sub silentio from what is also laid down in RVEV
Gounder and Dayamati supra.
10. Coming to another important decision the learned
counsel for the revision respondent placed reliance of two judge
bench of the Apex Court in H. Siddiqui (dead) by LRS Vs. A.
Ramalingam , it is also in relation to admission of a signature on
Photostat copy of a document. It is categorically observed therein
that mere admission of a signature on Photostat copy of a
document is not admission of the contents of the document and
when originals are not produced at any time nor any factual
foundation laid for giving secondary evidence, it is impermissible to
allow party to adduce secondary evidence is also the further
observation in relation to the proof of the contents of the document
in this regard as already observed supra what is to be marked only
a signature that too by making a mention that when the Xerox
copy signature is confronted to the RW.1-witness on 21.12.2017,
the witness answered that he identified the signature to be the
same of his father and witness further added that this letter does
not belong to him.
11. Thus whether it amounts to a clear admission or only a
corroboration peace regarding the signature or it requires any
corroboration from the other material is a matter of ultimate
appreciation and so far as that marking of the signature
concerned, the expression in Siddiqui supra also no way says even
signature admitted on the Xerox copy it cannot be marked. Thus
the order of the lower Court in not marking the disputed signature
portion of the document to the above extent stated as that of his
father is unjust, thereby set aside with a direction to the lower
Court to mark that signature portion with the observation as
indicated above. Needless to say in view of the above, the parties
stated they closed their evidence if any application filed by any of
the parties, the lower Court shall permit by receiving any memo
both parties wants to adduce any further evidence.
12. Accordingly and in the result, the Civil Revision Petition
is allowed.
Consequently, miscellaneous petitions, if any shall stand
closed. No costs.
_____________________________________
JUSTICE Dr. B.SIVA SANKARA RAO
Date: 02.04.2018
CIVIL REVISION PETITION No.1355 of 2018
02-04-2018
Sri Mohammed AleemuddinPetitioner
Sri Anney Vishwanath Rao died per L.R. Sri Sunil Kumar Anney.Respondent
Counsel for the petitioner:Sri Shyam S Agarwal
Counsel for the respondent: Sri Venkat Raghu Ramulu
<GIST:
>HEAD NOTE:
? Cases referred
1.AIR 1956 Bom 129
2.(2003) 8 SCC 752
3.(2004) 7 SCC 107
4.AIR 1994 SC 591
5.(2010) 8 SCC 423
6.AIR 2001 SC 1158
7.2017 (1) ALD 626
8.(2011) 4 SCC 240
HONBLE DR. JUSTICE B. SIVA SANKARA RAO
CIVIL REVISION PETITION No.1355 of 2018
ORDER:
The revision petitioner is the petitioner in R.C.No.391 of
2009 on the file of II Additional Rent Controller, Hyderabad, filed
under Section 10 of A.P. Buildings (Lease, Rent & Eviction) Control
Act, 1960 (for short the Act) for eviction of the respondent/tenant.
2. After the evidence of the petitioner in deciding the
contentious issues/points for determination, on behalf of
respondent, RW.1 was examined on 19 & 21.12.2017. The
relevant portion in the cross examination dated 21.12.2017
continuation of RW.1 i.e., RC.No.391 of 2009 respondent Sunil
Kumar Anney for the purpose of revision covered by the part of the
deposition of the witness during cross examination, which is in
fact the observation of the Court of the happening before it in that
course is that: The learned counsel for the petitioner confronted
the signature on the Xerox copy of the letter dated 20.05.2009 and
posed a question whether, he can identify the signature on the
bottom of the said letter (Xerox copy), then the witness answered
he identified the signature to be the same of his father, the witness
further adds that, this letter does not belong to him. Re-
examination nill.
3. The above observation of the Court of the happening
before it during cross-examination of RW.1 supra shows when a
Xerox copy of a letter containing a signature on the bottom with
the duly filled contents, when signature is confronted witness
answered of he identified the signature to be the same of his
father. The trial Court did not exhibit that signature even the
learned counsel for RW.1-respondent did not choose to seek any
further examination by re-examination of the witness for any
clarification, might be for the reason the witness added of this
letter does not belong to him.
4. Here two questions arisen in the revision to answer. One
is in such case a document petition is required to be filed as
contemplated by Rule 7 Clause (5) of the Rules framed under the
Act 1960.
7. (1) Every application under the Act shall in
addition to the particulars necessary to support it contain
also the particulars prescribed in Rule 3 so far as they may
be applicable and every application for eviction under
Section 10 shall also state the grounds on which the
application is made accompanied by the agreement of
tenancy, if any, rent receipt and a copy of the notice issued
to the tenant.
(2)..
(3)..
(4) The parties or their counsel shall produce, at the
first hearing of the case, all the documentary evidence of
every description in their possession or power on which
they intend to rely, and which has not already been filed,
and all documents which the Controller has ordered to be
produced, and the Controller shall receive the documents
so produced.
(5) No documentary evidence in the possession or
power of any party which should have been, but has not
been produced in accordance with the requirements of sub-
rule (4) shall be received at any subsequent stage of the
proceedings, unless good cause is shown to the satisfaction
of the Controller for the non-production thereof; and the
Controller receiving any such evidence shall record the
reasons for so doing.
(6) The Controller may at any stage of the case reject
any document which he considers irrelevant or otherwise
inadmissible, recording the grounds of such rejection.
(7) (i) Subject to the provisions of clause (ii), there
shall be endorsed on every document which has been
admitted in evidence in the case the following particulars,
namely:
(a) the number and title of the case.
(b) the name of the person producing the document.
(c) the date on which it was produced; and
(d) a statement of its having been so admitted; and
the endorsement shall be signed or initialled by the
Controller.
(ii) Where a document so admitted is an entry in a
book, account or record, and a copy thereof has been
substituted for the original under sub-rule (8), the
particulars aforesaid shall be endorsed on the copy and the
endorsement thereon shall be signed or initialled by the
Controller.
(8) (i) Save in so far as is otherwise provided by
Bankers Book Evidence Act, 1891, where a document
admitted in evidence in the case is an entry in a letter-book
or a shop book or other account in current use, the party
on whose behalf the book or account is produced, may
furnish a copy of the entry.
(ii) Where such a document is an entry in a public
record produced from a public office or by a public officer or
an entry in a book or account belonging to a person other
than a party on whose behalf the book or account is
produced, the Controller may require a copy of the entry to
be furnished:
(a) where the record book or account is produced on
behalf of a party, then by that party; or
(b) where the record book or account is produced in
obedience to an order of the Controller acting of his own
motion, then by either or any party.
(iii) Where a copy of an entry is furnished under the
provisions of clauses (i) and (ii), the Controller shall, after
causing the copy to be examined, compared and certified,
make the entry and cause the book, account or record in
which it occurs, to be returned to the person producing it.
(9) Where a document relied on as evidence by either
party is considered by the Controller to be inadmissible in
evidence, there shall be endorsed thereon the particulars
mentioned in clauses (a), (b) and (c) of clause (i) of sub-rule
(7), together with a statement of its having been rejected
and the endorsement shall be signed or initialled by the
Controller.
(10) (i) Every document which has been admitted in
evidence, or copy thereof, where a copy has been
substituted for the original under sub-rule (8), shall form
part of the record of the case.
(ii) Documents not admitted in evidence shall not
form part of the record and shall be returned to the persons
respectively producing them.
(11) Notwithstanding anything in sub-rule (8) or sub-
rule (10), the Controller may, if he sees sufficient cause,
direct any document or book produced before him in any
case to be impounded and kept in his custody for such
period and subject to such conditions as he think fit.
(12) (i) Any person, whether a party to the case or not
desirous of receiving back any document produced by him
in the case and placed on the record shall, unless the
document is impounded under sub-rule (11), be entitled to
receive back the same:
(a) where the case is one in which an appeal is not
allowed when the case has been disposed of; and
(b) where the case is one in which an appeal is
allowed, when the Controller is satisfied that the time for
preferring an appeal has elapsed and that no appeal has
been preferred or, if an appeal has been preferred, when the
appeal has been disposed of :
Provided that a document may be returned at any
time earlier than that specified by this sub-rule if the
person applying therefor delivers to the Controller a
certified copy to be substituted for the original and
undertakes to produce the original, if required to do so:
Provided further that no document shall be returned
which, by force of the order of the Controller, has become
wholly void or useless.
(ii) On the return of a document admitted in
evidence, a receipt shall be given by the person receiving it.
5. From the above mainly concerned with clause 5 supra
unless the cause is shown to the satisfaction of the Rent Controller
for non-production of the document in possession or power of a
party that has not been produced earlier, if at all to receive reasons
to be recorded for receiving. The second question is once the
witness in the course of cross-examination when confronted with a
document without even filed earlier as contemplated by the Rule
supra if witness admits any portion of it can the Court refuse
including to say it is only a secondary evidence without foundation
to the existence of original or a petition as contemplated by Rule
7(5) supra still required. The wording of Rule 7(5) supra is relevant
for the purpose is reproduced herein. Same is silent regarding the
requirement or not of a petition if confronted by other side during
the course of cross examination.
6. From the above, though the Rules framed under the Act
are the special law governing the procedure right from time of filing
till termination of the proceedings before the Rent Controller, once
the rules are silent regarding any particular or specific procedure,
the general provisions of CPC and Indian Evidence Act are
applicable cannot be disputed. It is the age old practice recognized
from the decisions of several High Courts including vividly by the
expression of the Bombay High Court in Melappa and another Vs.
Guramma and Others , that in the course of cross-examination to
confront with a witness a document petition earlier to be filed is
not contemplated, but for to say if the witness admits the
document, it is to be marked by filing the same with memo by
supply copy to the other side and if not admitted, the document
cannot be received to the file, but for to drive the party to file with
a petition if at all. The same is culminated into a statutory
provision under CPC more particularly from Order 13 Rule 2(2)
CPC prior to the CPC amendment in 2002 which say the following
documents need not be produced by a party where the document
produced for the cross examination of witness or witness of
opposite party, the documents which are handed over to witness to
refresh his memory. Refreshing of memory is contemplated by
Section 159 of the Evidence Act which speaks a witness may, while
under examination, refresh his memory by referring to any writing
made by himself at the time of the transaction concerning which
he is questioned, or so soon afterwards that the Court considers it
likely that the transaction was at that time fresh in his memory.
The witness may also refer to any such writing made by any other
person, and read by the witness within the time aforesaid, if when
he read it he knew it to be correct..
7. As per CPC amendment incorporating for the plaintiffs
belated filing of the documents contemplated by Order 7 Rule 14
and of the defendants belated filing of the documents covered by
Order 8 Rule 1-A specifically sub Rule 4 contemplating in both the
provisions a kin to earlier Order 13 Rule 2 referred supra of in the
course of cross examination when confronted to a witness earlier
filing of document petition for the belated filing is not required.
8. Thus though the Rent Control Act 1960 Rule 7 is silent,
such recourse has arisen in the case referred supra. Once the
provisions of the Evidence Act and CPC taken care as the general
procedure and the Rules of Evidence that apply same has to be
applied. Thus for the purpose once the witness admits to any
extent, leave about such evidentiary value of the witness as part of
the ultimate appreciation by the Court has to rely from its
relevancy fully or by requiring corroboration or to serve as peace of
corroboration to any other substantive peace of evidence. It is
premature for not a stage to appreciate while marking more
particularly from the fact that mere marking of a signature is not
marking of a proof of the contents of the document; the contents
are to be proved otherwise. Once the signature is marked, which
is portion of the document from which it contained it is to be made
clear that again filing of the petition to receive as secondary
evidence with foundation to the primary evidence may not arise,
but for to say if at all contents are chosen to prove foundation
required to lay for the existence of the original for adducing
secondary evidence required. Here it is not the stage nor
necessary to discuss further, but for to say so far as that signature
concerned, once admitted there is no further proof to the extent of
its admission for marking concerned, even that document
containing signature is not primary but secondary being Xerox
copy of document. Once a document admitted for marking even it
is a copy and no foundation laid of its original in existence, it is
only a procedural aspect and subsequent objection regarding its
marking cannot be raised is the law well settled by the Apex Court
in RVEV Gounder Vs. Arulmigu Viswesaraswami & V.P Temple ,
the same is quoted with approval by another bench of the Apex
Court in Dayamati Bai Vs. KM Shafi .
9. The learned counsel for the revision respondent drawn
attention of the Court to a three judge bench expression of the
Apex Court in Government of A.P. Vs. Karri Chinna Venkata
Reddy with reference to Sections 62 & 63 of the Evidence Act that
an objection as to tampering of record and fictitious nature of
document even not raised genuineness of the document once
fundamental question, copy should have been accepted in evidence
after examining original record was the conclusion therein. Here if
the other side objects to the marking, comparison arises. Once
other side admits to the marking, question of production of original
or comparison with original does not arise more particularly what
is laid down by the Apex Court in RVEV Gounder and Dayamati
supra. No doubt the other expression placed reliance is Shalimar
Chemical Works Limited Vs. Surendra Oil and Dal Mills
(Refineries) and Others referring to Order 13 Rules 3 & 4 CPC of
the procedure saying where secondary evidence regarding
registration certificate of the trade mark registration of the entity
raised the Court differing the same without instantaneously
deciding of the same is observed as depreciable in fact. In
Shalimar supra, the three judge expression of the Apex Court in
Bipin Shantilal Panchal Vs. State of Gujarat not brought on
record where it is the observation that unless it is on stamp duty
and registration any objection regarding the nature of document or
proof, relevancy and admissibility etc., shall be decided ultimately
rather than deciding instantaneously by the archaic practice that
gives life to the litigation of maintaining revisions from said giving
of observation and thereby directed all Courts to follow the
procedure to mark subject to objection and decide only ultimately
at the final hearing. In view of the same as observed in Kaitha
Narsinga Rao Vs. Kodi Supriya and another , the Shalimar
supra is hit by sub silentio from what is also laid down in RVEV
Gounder and Dayamati supra.
10. Coming to another important decision the learned
counsel for the revision respondent placed reliance of two judge
bench of the Apex Court in H. Siddiqui (dead) by LRS Vs. A.
Ramalingam , it is also in relation to admission of a signature on
Photostat copy of a document. It is categorically observed therein
that mere admission of a signature on Photostat copy of a
document is not admission of the contents of the document and
when originals are not produced at any time nor any factual
foundation laid for giving secondary evidence, it is impermissible to
allow party to adduce secondary evidence is also the further
observation in relation to the proof of the contents of the document
in this regard as already observed supra what is to be marked only
a signature that too by making a mention that when the Xerox
copy signature is confronted to the RW.1-witness on 21.12.2017,
the witness answered that he identified the signature to be the
same of his father and witness further added that this letter does
not belong to him.
11. Thus whether it amounts to a clear admission or only a
corroboration peace regarding the signature or it requires any
corroboration from the other material is a matter of ultimate
appreciation and so far as that marking of the signature
concerned, the expression in Siddiqui supra also no way says even
signature admitted on the Xerox copy it cannot be marked. Thus
the order of the lower Court in not marking the disputed signature
portion of the document to the above extent stated as that of his
father is unjust, thereby set aside with a direction to the lower
Court to mark that signature portion with the observation as
indicated above. Needless to say in view of the above, the parties
stated they closed their evidence if any application filed by any of
the parties, the lower Court shall permit by receiving any memo
both parties wants to adduce any further evidence.
12. Accordingly and in the result, the Civil Revision Petition
is allowed.
Consequently, miscellaneous petitions, if any shall stand
closed. No costs.
_____________________________________
JUSTICE Dr. B.SIVA SANKARA RAO
Date: 02.04.2018
Comments
Post a Comment