The office took the objection that since the impugned order was passed by the Senior Civil Judge, how the CMA is maintainable before the High Court. = Senior Civil Judges also have been entertaining the succession O.Ps as District delegates.= the Government in concurrence with the High Court of Andhra Pradesh, by virtue of the powers conferred under Section 388(1) of Indian Succession Act, 1925, have issued notification conferring powers on all the Senior Civil Judges to entertain original petitions filed under Indian Succession Act, 1925 and to exercise the functions of District Judge under Part-X of the said Act within their respective jurisdictions.- 388. Investiture of inferior courts with jurisdiction of District Court for purposes of this Act: (1) The State Government may by notification in the Official Gazette, invest any Court inferior in grade to a District Judge with power to exercise the functions of a District Judge under this Part. (2) Any inferior Court so invested shall, within the local limits of its jurisdiction, have concurrent jurisdiction with the District Judge in the exercise of all the powers conferred by this Part upon the District Judge, and the provisions of this Part relating to the District Judge shall apply to such an inferior Court as if it were a District Judge: Provided that an appeal from any such order of an inferior Court as is mentioned in sub-section (1) of section 384 shall lie to the District Judge, and not to the High Court, and that the District Judge may, if he thinks fit, by his order on the appeal, make any such declaration and direction as that sub-section authorises the High Court to make by its order on an appeal from an order of a District Judge.; Section 384 of Indian Succession Act = against the order of a District Judge granting, refusing or revoking a certificate under Part-X of Indian Succession Act, an appeal shall lie to the High Court. However, Section 384 is subject to the other provisions of Part-X which means the said section is subject to Section 388 as per which, against the order passed by an inferior Court, an appeal shall lie before the District Judge and not before the High Court.- For the above reasons, the office objection is found valid and hence sustained. The office is directed to return the CMA to the appellant for filing before an appropriate Court.

THE HONBLE SRI JUSTICE SURESH KUMAR KAIT AND  THE HONBLE SRI JUSTICE U.DURGA PRASAD RAO                  

CMASR No.45531 of 2016  

15-02-2017

Pasumarthi Srinivas...Appellant

Responded: NIL  ..Respondent        

Counsel for Appellant: Sri Rama Murty PVSA

Counsel for Respondent   :

<Gist:

>Head Note:

?Cases referred:

THE HONBLE SRI JUSTICE SURESH KUMAR KAIT        
AND
THE HONBLE SRI JUSTICE U.DURGA PRASAD RAO          
C.M.A. (SR) No.45531 of 2016
ORDER: (Per Honble Sri Justice U.Durga Prasad Rao)
        Perused the office objections and heard learned counsel
for appellant.
2)      This C.M.A is filed by the appellant aggrieved by the order
dated 25.07.2016 in S.O.P (SR) No.2632 of 2016 passed by the
Senior Civil Judge, Ramachandrapuram whereby the learned
Judge dismissed the petition filed by the petitioner/appellant
for granting succession certificate. Hence, the CMA.
3)      The office took the objection that since the impugned
order was passed by the Senior Civil Judge, how the CMA is
maintainable before the High Court. It appears, the office view is
that the appeal should have been filed before the concerned
District Court.
4)      Learned counsel would submit that the Senior Civil Judge
entertained the Succession O.P as a delegate of District Judge
by virtue of the powers conferred by the High Court under
ROC No.40/SO/72.1 and ROC No.40/SO/72.2 and therefore,  
the order passed by the Senior Civil Judge shall be deemed to
have been passed by the District Court and by virtue of Section
384 of the Indian Succession Act, an appeal shall lie to the High
Court from an order of a District Judge whether granting or
refusing or revoking a succession certificate and hence the
appeal filed before the High Court is legally maintainable.
5)      As per Section 371 of the Indian Succession Act, the
District Judge within whose jurisdiction the deceased ordinarily
resided at the time of his death or, if at the time he had no fixed
place of his residence, the District Judge within whose
jurisdiction any part of the property of the deceased may be
found, may grant a succession certificate.  As per Section 2 (bb)
of the said Act, the District Judge means the Judge of a
Principal Civil Court of original jurisdiction.  Hence, at the
inception of the Act, the Judge of a Principal Civil Court of
original jurisdiction alone was vested with the power to grant
succession certificate under Section 371 of the Act.
6)      Be that as it may, the High Court under the power
conferred under Section 265 of the Act, appointed Subordinate
Judges (now Senior Civil Judges) including the Additional
Judges in City Civil Courts, ex-officio as District delegates under
the Act.  Further, as per ROC No.40/SO/72.2, the High Court,
under Section 19(1) of Andhra Pradesh Civil Courts Act, 1972,
authorized all the subordinate judges to take cognizance of any
of the proceedings under Indian Succession Act, 1925, which
cannot be disposed of by the District delegates.  This aspect has
been clarified by this High Court in CMA No.46 of 2010 dated
20.03.2010.
7)      So, by virtue of the aforesaid conferment of powers, the
Senior Civil Judges also have been entertaining the succession
O.Ps as District delegates. As per Section 384 of the Act, an
appeal shall lie to the High Court from an order of a District
Judge granting, refusing or revoking a succession certificate.
The submission of learned counsel for appellant is that since
the Senior Civil Judges have been issuing the succession
certificates in the capacity as delegates to the District Judge,
the orders passed by them shall be deemed to have been passed
by the District Judge and hence the appeal against such order
shall lie before the High Court alone under Section 384 of the
Indian succession Act.
8)      The above argument though apparently sounds valid but
the same cannot be accepted for the following reasons.
a)      Following the letter Roc No.408/SO-3/2009, dated
01.11.2011 of the Registrar General, Andhra Pradesh High
Court, Hyderabad, the Government of Andhra Pradesh issued
G.O.Ms.No.11 dated 08.02.2012, which reads thus:
ORDER:
      The Registrar General, High Court of Andhra
Pradesh, Hyderabad, in his letter read above, has
forwarded the Draft Notification with regard to the
Conferment of powers on Senior Civil Judge Courts to
entertain Original Petitions filed under the Indian
Succession Act, 1925.
2.      The Government after careful examination of the
matter have decided to approve the Draft Notification
with regard to the Conferment of powers on Senior Civil
Judge Courts to entertain Original Petitions filed under
the Indian Succession Act, 1925.
3.      Accordingly, the following Notification will be
published in an Extraordinary issue of the Andhra
Pradesh Gazette.
NOTIFICATION  
      In exercise of the powers conferred by sub-section
(1) of section 388 of the Indian Succession Act, 1925
(Central Act 39 of 1925) and of all other powers here
unto enabling the Governor of Andhra Pradesh hereby
confers powers on all the Principal Senior Civil Judges,
where there are more than one Senior Civil Judges Court
and Senior Civil Judges Court where only one Court is
functioning at such station to entertain original petitions
filed under the Indian Succession Act, 1925 and shall
exercise the functions of District Judge under Part-X of
the said Act within their respective jurisdictions.
        So, by virtue of above G.O. the Government in
concurrence with the High Court of Andhra Pradesh, by virtue
of the powers conferred under Section 388(1) of Indian
Succession Act, 1925, have issued notification conferring
powers on all the Senior Civil Judges to entertain original
petitions filed under Indian Succession Act, 1925 and to
exercise the functions of District Judge under Part-X of the said
Act within their respective jurisdictions.
        For convenience, Section 388 of Indian Succession Act is
extract below:
388. Investiture of inferior courts with jurisdiction
of District Court for purposes of this Act:
(1) The State Government may by notification in the
Official Gazette, invest any Court inferior in grade to a
District Judge with power to exercise the functions of a
District Judge under this Part.
(2) Any inferior Court so invested shall, within the local
limits of its jurisdiction, have concurrent jurisdiction
with the District Judge in the exercise of all the powers
conferred by this Part upon the District Judge, and the
provisions of this Part relating to the District Judge shall
apply to such an inferior Court as if it were a District
Judge:
      Provided that an appeal from any such order of an
inferior Court as is mentioned in sub-section (1) of
section 384 shall lie to the District Judge, and not to the
High Court, and that the District Judge may, if he thinks
fit, by his order on the appeal, make any such
declaration and direction as that sub-section authorises
the High Court to make by its order on an appeal from
an order of a District Judge.
(3) An order of a District Judge on an appeal from an
order of an inferior Court under the last foregoing sub-
section shall, subject to the provisions as to reference to
and revision by the High Court and as to review of
judgment of the Code of Civil Procedure, 1908 (5 of
1908), as applied by section 141 of that Code, be final.
(4) The District Judge may withdraw any proceedings
under this Part from an inferior Court, and may either
himself dispose of them or transfer them to another such
Court established within the local limits of the
jurisdiction of the District Judge and having authority to
dispose of the proceedings.
(5) A notification under sub-section (1) may specify any
inferior Court specially or any class of such Courts in
any local area.
(6) Any Civil Court which for any of the purposes of any
enactment is subordinate to, or subject to the control of,
a District Judge shall, for the purposes of this section, be
deemed to be a Court inferior in grade to a District
Judge.
        So, proviso to sub-section (2) specifically lays down that
an appeal from any order of an inferior Court as mentioned in
sub-section (1) shall lie to the District Judge and not to the
High Court.
        In view of the specific provision which creates forum for
appeal which is the District Court in the instant case, the
submission of learned counsel that the appeal shall lie before
the High Court cannot be accepted.
b)      For another reason also his argument does not hold water.
Section 384 of Indian Succession Act which speaks of appeal
reads thus:
384. Appeal.
(1) Subject to the other provisions of this Part, an appeal
shall lie to the High Court from an order of a District
Judge granting, refusing or revoking a certificate under
this Part, and the High Court may, if it thinks fit, by its
order on the appeal, declare the person to whom the
certificate should be granted and direct the District
judge, on application being made therefor, to grant it
accordingly, in supersession of the certificate, if any,
already granted.
(2) An appeal under sub-section (1) must be preferred
within the time allowed for an appeal under the Code of
Civil Procedure, 1908 (5 of 1908).
(3) Subject to the provisions of sub-section (1) and to the
provisions as to reference to and revision by the High
Court and as to review of judgment of the Code of Civil
Procedure, 1908 (5 of 1908), as applied by section 141 of
that Code, an order of a District Judge under this Part
shall be final.
        The above section no doubt lays down that against the
order of a District Judge granting, refusing or revoking a
certificate under Part-X of Indian Succession Act, an appeal
shall lie to the High Court. However, Section 384 is subject to
the other provisions of Part-X which means the said section is
subject to Section 388 as per which, against the order passed
by an inferior Court, an appeal shall lie before the District
Judge and not before the High Court.
9)      For the above reasons, the office objection is found valid
and hence sustained. The office is directed to return the CMA to
the appellant for filing before an appropriate Court.
10)     The Registry is directed to verify and if found, return the
appeals pending before the High Court against the orders
passed by the Senior Civil Judge under Indian Succession Act,
to the concerned District Courts for adjudication.

__________________________  
SURESH KUMAR KAIT, J    
___________________________    
U.DURGA PRASAD RAO, J    
Date: 15.02.2017

Whether the Courts below were justified in considering the Ex.A1/Ex.B-2 deed dated 19-03-2005 executed by S. Narapa Reddy as an irrevocable gift settlement deed in favour of the respondent Nos.1 and 2/plaintiffs though the recitals in the said deed provided for retaining of life interest in the property in S. Narapa Reddy himself and after his demise to his wife? 2. Whether the Courts below were justified in holding that the revocation deeds executed by S. Narapa Reddy were void and not binding upon the respondent Nos.1 & 2 even in the absence of any prayer sought for by the respondent Nos.1 & 2 in this regard? 3. Whether both the Courts were justified granting the reliefs sought by the respondent Nos.1 & 2 in the absence of any prayer in suit against the revocation deeds executed by the father of the respondent Nos.1 & 2 and also the substantial registered sale deed dated 04-04-2012 in favour of the appellant Nos.2 & 3? 4. Whether the trial Court was justified in holding that the appellant Nos.2 & 3 are not bonafide purchasers for valuable consideration merely because the counsel for the appellant No.1 had received notice about the filing of the suit on 02-04-2012 and the sale deeds in favour of the appellant Nos.2 & 3 were executed on 04-04-2012?

THE HONBLE SRI JUSTICE SURESH KUMAR KAIT        

S.A No.1054 of 2016

02-01-2017

Smt. Syamala Raja Kumari and others. .Appellants.

Alla Seetharavamma and another. .... Respondents.

Counsel for the petitioner :  Kowturu Pavan Kumar.                    
       
Counsel  for the Respondent: Sreenivasa Rao Velivela                  
               

<Gist :

>Head Note:

? Cases referred:

1.AIR 2014 SC 2906
2.2013 (5) ALD 711

THE HONBLE SRI JUSTICE SURESH KUMAR KAIT        

SECOND APPEAL No.1054 of 2016    

Date:02.01.2017


THE HONBLE SRI JUSTICE SURESH KUMAR KAIT        

SECOND APPEAL No.1054 of 2016    

JUDGMENT:  
        Vide the present second appeal, the appellants have assailed
the Judgment & Decree dated 19-10-2016 passed in
A.S.No.75/2016  on the file of I Additional District Judge, Guntur
whereby confirmed the Judgment & Decree dated 12-11-2015  
passed in O.S.No.50/2012 on the file of the Senior Civil Judge,
Mangalagiri, Guntur District.

2.      The appellants have filed the present second appeal on the
substantial questions of law as under:-
       1.      Whether the Courts below were justified in
considering the Ex.A1/Ex.B-2 deed dated 19-03-2005 executed by  
S. Narapa Reddy as an irrevocable gift settlement deed in favour of
the respondent Nos.1 and 2/plaintiffs though the recitals in the
said deed provided for retaining of life interest in the property in
S. Narapa Reddy himself and after his demise to his wife?

       2.       Whether the Courts below were justified in holding
that the revocation deeds executed by S. Narapa Reddy were void
and not binding upon the respondent Nos.1 & 2 even in the
absence of any prayer sought for by the respondent Nos.1 & 2 in
this regard?

       3.       Whether both the Courts were justified granting the
reliefs sought by the respondent Nos.1 & 2 in the absence of any
prayer in suit against the revocation deeds executed by the father
of the respondent Nos.1 & 2 and also the substantial registered
sale deed dated 04-04-2012 in favour of the appellant Nos.2 & 3?

       4.       Whether the trial Court was justified in holding that
the appellant Nos.2 & 3 are not bonafide purchasers for valuable
consideration merely because the counsel for the appellant No.1
had received notice about the filing of the suit on 02-04-2012 and
the sale deeds in favour of the appellant Nos.2 & 3 were executed
on 04-04-2012? 

3.      Learned counsel for the appellants submits that the
document-Ex.A1 executed is a Will, not a gift deed and the Will can
be conditional and revocable, if revoked in the same manner as
executed earlier.  Admittedly, Ex.A1 is a registered document,
which can be revoked subsequently by another registered
document, but the issue before the Court below was that whether
the document-Ex.A1 was a Will or a gift deed.

4.      Learned counsel for the appellants submits that the said
document was a Will and in Will, some conditions can be affixed
while exhibiting such document, whereas in case of gift, the said
document is absolute and there cannot be any condition.  In case
of gift, whether it is gifted in favour of some one out of love and
affection or not gifted any of the property over a right therein.

5.      On a perusal of the impugned order, the Court below has
discussed that when the gift may be suspended or revoked.
For the said purpose, Section 126 of Transfer of Property Act is
relevant, which is reproduced as under:-
126. When gift may be suspended or revoked.The donor and  
donee may agree that on the happening of any specified event
which does not depend on the will of the donor a gift shall be
suspended or revoked; but a gift, which the parties agree shall be
revocable wholly or in part, at the mere will of the donor, is void
wholly or in part, as the case may be.
       A gift may also be revoked in any of the cases (save want
or failure of consideration) in which, if it were a contract, it might
be rescinded.
       Save as aforesaid, a gift cannot be revoked.
       Nothing contained in this section shall be deemed to affect
the rights of transferees for consideration without notice.


6.      It is not in dispute that the gift is to be executed only out of
love and affection.  As per Ex.B2-gift settlement deed executed by
donar, the donar executed the said gift deed out of love and
affection towards the plaintiffs.  Ex.B2 is a valid gift deed and it is
a registered one.  It is executed by owner and attested by two
attesters.  In fact, the execution of gift deed is not in dispute.

7.      The donar in Exs.B3 & B4 revocation deed clearly admitted
about the execution of Ex.B2-gift settlement deed.  Even Ex.B5-
registered sale deed also, the donar mentioned execution of Ex.B2-
gift settlement deed in favour of the plaintiffs.

8.      To substantiate as recorded above, it is necessary to note
down that the original gift settlement deed dated 19-03-2005
executed by Narapa Reddy in favour of the plaintiffs and his wife
Annapurnamma was marked as Ex.B2.  The said document-Ex.B2    
recited in the said deed that the plaintiffs are the daughters, the
donar wanted to gift the schedule property in their favour out of
love and affection.  Under the said document, life interest right was
retained by the donar-Narapa Reddy. As mentioned in the said
document that after the death of donar, his wife shall enjoy the
property without any right of alienation till her death and
thereafter, the donees-plaintiffs can enjoy the property with
absolute rights.  However, there are no conditions imposed by the
donar for gifting the said property in favour of the plaintiffs.
The said document makes it clear that it is not at all a Will and it
is only a gift deed and what was retained by the donar is right to
enjoy the property till his death and similarly, his wife also was
enjoyed the property till her death.  The wife of the donor
predeceased him.  But on 13-02-2008, the donor-Narapa Reddy
executed Ex.B3-revocation deed.  In the said revocation deed, the
donor admitted that he executed a gift settlement deed in favour of
the plaintiffs out of love and affection.  But the reasons mentioned
by the donor for revocation of the gift deed are that the plaintiffs
are not taken care of him and his wife and they are not visiting his
house and they lost his confidence and so, he revoked the gift
settlement deed executed in the year 2005.  Again on 07-02-2012,
the donar executed another revocation deed vide Ex.B4, wherein
he mentioned that the plaintiffs obtained the gift settlement deed
by misrepresenting him.  But the said fact is not mentioned in the
earlier revocation deed dated 13-02-2008.  So for the first time in
Ex.B4-revocation deed, the donor has mentioned that the donees
obtained the gift settlement deed by misrepresenting him and by
inducing him.  Thereafter, on 15-02-2012, the donor executed
Ex.B5-sale deed in favour of the first defendant in respect of the
schedule property.  In the said sale deed also, the donor clearly
admitted the fact that he executed gift settlement deed in favour of
the plaintiffs on 19-03-2005 and thereafter, his wife
Annapurnamma died on 13-07-2008.  

9.      It is important to note that in the said sale deed, the donor
has not mentioned that the plaintiffs obtained gift settlement deed
by misrepresenting him and by inducing him.  However, it was
mentioned that as he was in need of money for his maintenance,
medical expenses and for discharging debts, he cancelled the gift
settlement deed by execution of revocation deed i.e., Ex.B4.

10.     To substantiate the above opinion, the Court below observed
that once a valid gift has given by the donor and was accepted by
donees, the same cannot be revoked for any reason.  As per the
provisions of Section 126 of the Transfer of Property Act, if the gift
is a conditional one, and the donee has not fulfilled the condition,
then the donor may get some right to revoke the gift.  In the case in
hand, the donor-Narapa Reddy has gifted the schedule property to
the plaintiffs with absolute rights, but he retained his right to
enjoy the property till his death.  Simply because, the donor has
retained the right to enjoy the property, it cannot be said that the
absolute gift of schedule property was made in fvour of the
plaintiffs.

11.     In the present situation, a case of Renikunta Rajamma
(died) by L.Rs vs. K. Sarwanamma  is relevant whereby held that
the recitals in the gift deed also prove transfer of absolute title in
the gifted property from the donor to the donee. What is retained is
only the right to use the property during the life time of the donor,
which does not in any way affect the transfer of ownership in favour
of the donee by the donor.

12.     In case of Nakka Parthasarathy vs. Nakka Krishnaveni
and others , wherein held that when once the gift deed is
voluntarily made without there being any coercion or undue
influence, the acceptance of the gift by the donee would be complete
even though the deed of gift is not delivered to the donee and the gift
property continues to be in the donors possession.

13.     In the present case, as per the terms of Ex.B2-gift settlement
deed, after the death of donor-Narapa Reddy, the plaintiffs would
get absolute rights in respect of the schedule property.
By executing the said gift settlement deed, the donor has divested
his right in the schedule property so he cannot unilaterally execute
any revocation deed for revoking the gift settlement deed executed
by him in favour of the plaintiffs. So the revocation deeds executed
by the donor vide Exs.B3 & B4 are not binding on the plaintiffs as
said deeds are not valid. So once the donor had no right to revoke
the gift settlement deed validly executed by him in favour of the
plaintiffs, he cannot alienate the schedule property in favour of the
first defendant by executing Ex.B5-sale deed.

14.     It is pertinent to mention here that within two months from
the date of obtaining Ex.B5-sale deed, the first defendant in turn
alienated the schedule property in favour of defendants 4 & 5.
The sale transaction entered by the first defendant in favour of
defendants 4 & 5 is subsequent to the filing of the suit.

15.     As stated by the counsel for the respondents that the
property in question has only been got vacated vide order passed
in E.P.No.1/2016 by the Senior Civil Judge, Mangalagiri.
Consequently, the respondents 1 & 2 are in possession. Even
otherwise, the questions of law framed by the appellants has no
legal issue therein and find no perversity or illegality in the orders
passed by the two Courts below.  Therefore, I find no grounds to
interfere with the decisions taken by them.

16.     Accordingly, finding no merits, this Second Appeal is
dismissed and as a sequel, miscellaneous petitions, if any, pending
in this second appeal, shall sand dismissed.  No costs.
_________________________________    
JUSTICE SURESH KUMAR KAIT      
Date:02-01-2017

Election - Disqualification of candidates: (3) A person having more than two children shall be disqualified for election or for continuing as member: Provided that the birth within one year from the date of commencement of the Andhra Pradesh Panchayat Raj Act, 1994 hereinafter in this section referred to as the date of such commencement, of an additional child shall not be taken into consideration for the purposes of this section: Provided further that a person having more than two children (excluding the child if any born within one year from the date of such commencement) shall not be disqualified under this section for so long as the number of children he had on the date of such commencement does not increase: Provided also that the Government may direct that the disqualification in this section shall not apply in respect of a person for reasons to be recorded in writing.-; Writ Jurisdiction - limited - the settled legal position is that the jurisdiction of the High Court to issue writ of certiorari is supervisory in nature, that while exercising this jurisdiction the Court is not entitled to act as an appellate court, and that the findings of fact arrived at by inferior Court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings.-except the Tribunal/Court had erroneously refused to admit admissible and material evidence or had erroneously admitted inadmissible evidence which has influenced the impugned finding.;

THE HONBLE SRI JUSTICE A.V.SESHA SAI      

W.P.No.42819 of 2016

21-02-2017

Katla Prashanthi w/o. Shanker @ Shankaiah..Petitioner

Dudapaka Shoba, w/o Shanker and 9 others....Respondents  

Counsel for the Petitioner: Sri O.Manoher Reddy

Counsel for the 1st Respondent: Sri S.Satyam Reddy


<GIST:

>HEAD NOTE:  

? Cases referred

1 2013 (6) ALD 592
2 2005 (5) ALD 742
3 2005 (2) ALD 174 (DB)
4 2004 (5) ALD 525
5 2017 (1)ALD 655 (DB)

THE HONBLE SRI JUSTICE A.V.SESHA SAI      

W.P.No.42819 of 2016

O R D E R:
        In the present writ petition, challenge is to the order dated
01.12.2016 passed by the Election Tribunal (Junior civil Judge), Mulug and
the order of the District Collector, Warangal District passed vide proceedings
No.111/2016/A, dated 09.12.2016.
2.      The facts and circumstances, leading to the filing of the present writ
petition are as under:
2.1.    In the election held on 23.07.2013, petitioner herein got
elected as Sarpanch of Ghanpur (Mulug) Gram Panchayat, Warangal  
District.  Respondent No.1 filed O.P.No.3 of 2013 under Section 22
read with sections 19 (3) and 233 of the A.P. Panchayat Raj Act, 1994
to declare the petitioner as disqualified under Section 19 (3) of the
Act,  to set aside the election as null and void and to declare her as
Sarpanch elected.  The petitioner herein filed a counter, denying the
allegations and averments in the said election O.P.  The learned
Junior Civil Judge, by way of an order dated 01.12.2016 declared the
election of the petitioner as null and void and further declared the first
petitioner herein as Sarpanch of the Grampanchayat.  In pursuance of
the said order of the Election Tribunal, the District Collector passed an
order vide proceedings No.111/2016/A dated 09.12.2016.
2.2.    In the above background, assailing the validity and the legal
sustainability of the said order, the present writ petition came to be
filed.
3.      Heard Sri O.Manoher Reddy, learned counsel for the petitioner,
Sri S. Satyam Reddy, learned Senior Counsel appearing for
Smt.K.V.Rajashree, learned counsel for the first respondent apart from
perusing the material available before the Court.
4.      Submissions/contentions of Sri O.Manohar Reddy, learned counsel for
the petitioner:
4.1.    The order of the Election Tribunal is erroneous, contrary to law
and opposed to the very spirit and object of the provisions of the
Panchayat Raj Act, 1994 and the Rules framed there-under.
4.2.    The questioned order passed by the Election Tribunal is
contrary to the material available on record.
4.3.    The Tribunal did not assign any reasons, much less valid
reasons for declaring the first respondent elected as Sarpanch.
4.4.    The first respondent did not raise any objection with regard to
alleged disqualification of the writ petitioner at the time of scrutiny of
nominations before the Scrutiny Officer, as such, it would not be open
for the first respondent to raise objection under Sub-section (3) of
Section 19 of the Panchayat Raj Act, 1994.
4.5.    The Election Tribunal grossly erred in relying on the evidence
of PWs.2 and 3 and no copy of the enquiry report was furnished to
the petitioner.
4.6.    In support of his submissions and contentions, learned counsel
for the petitioner placed reliance on the judgment of this Court in the
case of YELLAPRAGADA PRABHAKARA RAO v. SOUTHERN            
POWER DISTRIBUTION CO., OF A.P. LTD., TIRUPATHI .      
5.      Submissions/contentions of Sri S.Satyam Reddy, learned Senior
counsel appearing for the first respondent:
5.1.    The order of the Election Tribunal does suffer neither from any
illegality nor perversity and in the absence of the same the impugned
order is not amenable for any judicial review under Article 226 of the
Constitution of India.
5.2.    Since the Election Tribunal thoroughly and elaborately
considered the entire material on record, the impugned order does
not warrant any interference of this Court under Article 226 of the
Constitution of India.
5.3.    By adducing oral and documentary evidence, the first
respondent could successfully prove that the writ petitioner sufferd
disqualification as per section 19 (3) of the Panchayat Raj Act, 1994.
5.4.    Since the first respondent got next  highest number of votes,
the Tribunal is perfectly justified in declaring R.1 as the candidate
elected as Sarpanch of Grampanchayat.
5.5.    The S.S.C certificate which is of the year 2016 i.e., a certificate
issued after elections after tampering of the school records, cannot be
looked into.
5.6.    The Tribunal, after elaborately analyzing the evidence, came to
the conclusion that the date of birth of the writ petitioners fourth
child was manipulated  as 23.03.1995 as such the said findings
supported by reasons cannot be faulted.
6.      In the above background, now the issues that emerge for
consideration of this Court are:
1.      Whether the orders of the Election Tribunal and the orders of
the District Collector are in accordance with law or whether the same
warrant any interference of this Court under Article 226 of the
Constitution of India?
2.      Whether Writ of Certiorari can be issued in the facts and
circumstances?
7.      Issue No.1:
        The case of the election petitioner/first respondent herein is that as
on the date of filing of nominations for election to the office of the Sarpanch,
the writ petitioner was having 4 children i.e., two daughters and two sons
and their date of births being 11.02.1989, 12.12.1991, 20.04.1993 and
23.03.1999 as per school records.  On the other hand, the case of the first
respondent in O.P.No.3/2013, who is the petitioner herein, in her counter, is
that the four issues were born on 04.10.1988, 18.10.1990, 20.04.1994 and
23.03.1995. The sum and substance of the case of the election petitioner is
that since the fourth issue of the writ petitioner herein was born after the
cutoff date, the writ petitioner suffered disqualification as per Section 19 (3)
of the A.P. Panchayat Raj Act, 1994.  In this context it may be appropriate
and apposite to refer to the said provision of law.  Section 19 (3) of the Act,
reads as under:
      19. Disqualification of candidates: (3) A
person having more than two children shall be disqualified
for election or for continuing as member:
      Provided that the birth within one year from the
date of commencement of the Andhra Pradesh Panchayat  
Raj Act, 1994 hereinafter in this section referred to as the
date of such commencement, of an additional child shall
not be taken into consideration for the purposes of this
section:
      Provided further that a person having more than
two children (excluding the child if any born within one
year from the date of such commencement) shall not be
disqualified under this section for so long as the number
of children he had on the date of such commencement
does not increase:  Provided also that the Government
may direct that the disqualification in this section shall not
apply in respect of a person for reasons to be recorded in
writing.
8.      Now, it is required to be examined as to whether the material
available on record shows that the writ petitioner suffered disqualification as
per Section 19 (3) of the A.P. Panchayat Raj Act, 1994.  On the basis of the
pleadings available, the learned Junior Civil Judge framed the following
issues for trial:
1.      Whether the respondent No.1 suffered disqualification for the
post of Sarpanch as per Section 19 (3) of the A.P. Panchayt Raj Act,
1994?
2.      Whether Mani Sharma, the fourth issue of the respondent No.1
is born on 23.03.1995 as claimed by the respondent No.1?
3.      Whether the date of birth of Mani Sharma is tampered in the
school records?
4.      Whether the petitioner is entitled for the relief as prayed for?
5.      Whether the election of the respondent No.1 as Sarpanch,
Grampanchayat, Ghanpur (v) is liable to be declared as illegal, null
and void?
6.      To what relief?
9.      During the course of trial, election petitioner/first respondent herein
examined himself as PW.1 and also examined one Mr.M.Krishna Murthy,  
Deputy Educational Officer, Mulugu as PW.2 and Sri Lyagalla Krishna, Head
Master of Froebel Model High School, Ghanpur (M), wherein the fourth issue
of the writ petitioner herein studied, as PW.3 and on behalf of the Election
Petitioner, Exs.P.1 to P.21 and X.1 to X11 were filed and the writ petitioner
herein examined herself as RW.1 and examined her husband as RW.2 and  
filed Exs.R.1 to R.7 on her behalf to substantiate her case.
10.     It is to be noted that except examining herself as RW.1 and
examining her husband as RW.2, the respondent No.1 in the election O.P,
who is the writ petitioner herein did not examine any uninterested witnesses
to substantiate her case.  On the other hand, the election petitioner apart
from examining herself as PW.1, as stated supra also examined the Deputy
Educational Officer, Mulugu and Head Master of Froebel Model High School
wherein the fourth issue of the writ petitioner prosecuted the studies as
PW.2 and PW.3.  Both PW.2 and PW.3 are uninterested witnesses and the  
reality remains that the writ petitioner herein did not attribute any malafides
against them.
11.     The Election Tribunal, took into consideration the evidence of PW.2
who deposed, in clear and vivid terms, that on being instructed by the
District Educational Officer pursuant to the directions of the District
Collector,
he proceeded to Froebel High School where the fourth issue of the petitioner
studied  on 12.08.2013 and verified the Admission Register and found the
date of birth tampered in the Admission Register as 23.03.1995 from
23.03.1999 and collected the said Admission Register from the school and
shown the same to the District Educational Officer while submitting Ex.X4
enquiry report.  He also categorically stated that subsequently he handed
over the said records to the School.  PW.2 also stated about the statement of
the Head Master of the School that he himself changed the date of birth in
the Admission Register.  It is also evident from the impugned order that the
Election Tribunal had considered the evidence of PW.3, Head Master of the
School who categorically stated that the original date of birth was registered
as 23.03.1999 and about five years back basing on the ration card produced
by the parents, the then vice principal changed the said date of birth as
23.03.1995.  It is crystal clear from the evidence of PW.3 and as per Exs.X.6
to X.10 attendance registers for the classes 2 to 6 that the date of birth is
only 23.03.1999.  The Tribunal also considered Ex.X.11, altered date of birth
of Katla Manisharma for the year 2005-2006.  The Tribunal while dealing
with evidentiary value of the S.S.C certificate produced by the writ petitioner
herein found that Ex.R.6 S.S.C certificate is obtained basing on the tampered
record and the same cannot be taken into consideration.    The said finding
in the considered opinion of this Court, having regard to the facts and
circumstances of the case and voluminous evidence available on record by
any stretch of imagination cannot be faulted.
12.     Another significant aspect which needs mention in this context is that
the years of birth of various students who prosecuted the studies along with
the fourth issue of the writ petitioner were shown as 1999 or 2000, as such,
the finding of the Court below cannot be faulted.  In view of the categorical
findings of the Tribunal the Judgment of this Court reported in
YELLAPRAGADA PRABHAKARA RAO (supra 1) would not render any        
assistance to the petitioner herein.  In the case of B.KANTHA REDDY v.
MANDAL DEVELOPMENT OFFICER-CUM-ADDITIONAL DISTRICT              
ELECTIONN AUTHORITY, MANOPAD MANDAL, MAHABUBNAGAR ,                
this Court categorically found that it is for the person against whom the
allegation is made as per Section 19 (3) to disprove the same.
13.     Another significant aspect which needs mention in this connection is
that the petitioner herein is praying for a Writ in the nature of Certiorari.
While dealing with the para-meters of Writ of Certiorari, the Honble Apex
Court in the case of SYED YAKOOB v. K.S.RADHAKRISHNAN AND        
OTHERS, at paragraph 7 held as under:
        7. The question about the limits of the jurisdiction of
High Courts in issuing a writ of certiorari under Art. 226
has been frequently considered by this Court and the true
legal position in that behalf is no longer in doubt. A writ of
certiorari can be issued for correcting errors of jurisdiction
committed by inferior courts or Tribunals; these are cases
where orders are passed by inferior courts or tribunals
without jurisdiction, or in excess of it, or as a result of
failure to exercise jurisdictions. A writ can similarly be
issued where in exercise of jurisdiction conferred on it,
the Court or Tribunal acts illegally or improperly, as for
instance, it decides a question without giving an
opportunity to be heard to the party affected by the
order, or where the procedure adopted in dealing with the
dispute is opposed to principles of natural justice. There
is, however, no doubt that the jurisdiction to issue a writ
of certiorari is a supervisory jurisdiction and the Court
exercising it is not entitled to act as an appellate Court.
This limitation necessarily means that findings of fact
reached by the inferior Court or Tribunal as a result of the
appreciation of evidence cannot be reopened or
questioned in writ proceedings. An error of law which is
apparent on the face of the record can be corrected by a
writ, but not an error of fact, however grave it may
appear to be. In regard to a finding of fact recorded by
the Tribunal a writ of certiorari can be issued if it is shown
that in recording the said finding, the Tribunal had
erroneously refused to admit admissible and material
evidence, or had erroneously admitted inadmissible
evidence which has influenced the impugned finding.
Similarly, if a finding of fact is based on no evidence, that
would be regarded as an error of law which can be
corrected by a writ of certiorari. In dealing with this
category of cases, however, we must always bear in mind
that a finding of fact recorded by the Tribunal cannot be
challenged in proceedings for a writ of certiorari on the
ground that the relevant and material evidence adduced
before the Tribunal was insufficient or inadequate to
sustain the impugned finding. The adequacy or sufficiency
of evidence led on a point and the inference of fact to be
drawn from the said finding are within the exclusive
jurisdiction of the Tribunal, and the said points cannot be
agitated before a writ court. It is within these limits that
the jurisdiction conferred on the High Courts under Art.
226 to issue a writ of certiorari can be legitimately
exercised (vide Hari Vishnu Kamath v. Syed Ahmed
Ishaque ), Nagendra Nath Bora v. The Commissioner of
Hills Division and Appeals, Assam ([1958] S.C.R. 1240.),
and Kaushalya Devi v. Bachittar Singh.
14.     In the case of BURADA KANAKA RATNAM v. SENIOR      
SUPERINTENDENT OF POSTS, BHIMAVARAM DIVISION , the Division          
Bench of this Court at paragraph 12, held as under:
12. On the settled principles relating to exercise of
certiorari jurisdiction the decisions are two numerous and
the well settled principles need no repetition at the hands
of this Court. The fact that the writ petitioner had been
staying with one K. Satyanarayana, is not in controversy.
The fact that the writ petitioner also was nominated at a
particular point of time by the said K. Satyanarayana for
Provident Fund benefits also is not in controversy. No
doubt it is stated that subsequent thereto it had been
withdrawn. The fact that the writ petitioner begot a child
through K. Satyanarayana also is not in controversy. It is
also pertinent to note that when the writ petitioner was
directed to produce the educational certificate of her child
through the said Satyanarayana, the same was not
produced before this Court. Clear findings had been
recorded on the strength of the respective pleadings and
also on the material available on record which are findings
relating to fact to the effect that there was re-marriage.
The principles of burden of proof relating to proof of
factum of marriage which had been referred to supra by
the decided cases in relation to the other maintenance
claims or in proof of the findings of bigamy cannot be
imported in toto in appreciating such questions in relation
to employment matters under service jurisprudence. Be
that as it may, the fact remains that a finding had been
recorded in this regard and even if the said finding is
based on insufficient evidence it cannot be a ground for
disturbing such a finding while exercising certiorari
jurisdiction.
15.     In the case of R.JAYALAKSHMAMMA v. ELECTION TRIBUNAL-        
CUM-SENIOR CIVIL JUDGE, PUNGANUR, CHITTOOR AND OTHERS ,            
this Court at paragraphs 13, 14 held thus:
13. At the outset the principles and the scope of power
of judicial review to quash a decision of statutory Tribunal
may briefly be reiterated. It is well settled that while
judicially reviewing the decision of a statutory Tribunal,
High Court ordinarily does not substitute its opinion for
the opinion or finding recorded by the Tribunal on
appreciation of oral and documentary evidence. Merely
because other view is also possible from such
reappreciation of same evidence, it cannot be a ground
for High Court to deviate from the finding of the fact
recorded by the Tribunal, re-appreciate the evidence on
record and give its own finding which is different from the
finding recorded by the Tribunal. It is axiomatic that the
Court of judicial review is not an Appellate Court and the
Court essentially reviews the decision making process
rather than decision itself. Nonetheless, it is also settled
that when the question is raised that the Tribunal has
committed jurisdictional error or committed grave error
apparent on the face of the record while appreciating the
evidence, recording findings of fact and applying law to
such findings on fact, the Court of judicial review can
always; curiously though, - look into the evidence to see
whether the finding of fact is perverse and whether the
proper principles of appreciation of evidence have been
applied to the facts. Even after such exercise, if the Court
finds that the findings are grounded on substantially
acceptable evidence, the findings cannot be upset and
reappreciation of evidence as an Appellate Court is not
within the purview of judicial review.
14. Yet another well settled principle is that it is not every
error can be corrected in judicial review. Only grave error
apparent on the face of the record would be amenable for
judicial scrutiny. A reference may be made to a
Constitution Bench judgment of the Supreme Court in
Syed Yakoob v. Radhakrishnan, , HB, Gandhi v. Gopi
Nath, (1992) 2 SCC Supp. 312, and a Division Bench
judgment of this Court in The Depot Manager,
A.P.S.R.T.C. v. P. Gangarajulu, 1995 (3) ALD 1054= 1996
(1) ALT 32 (DB).
16.     In the case of DR.K.L.NARAYANA v. SPECIAL TRIBUNAL U/A.P.      
LAND GRABBING PROHIBITIOIN ACT , this Court at paragraph 13 of    
the Judgment, held as under:
      13. . What emerges from the settled legal position
is that the jurisdiction of the High Court to issue writ of
certiorari is supervisory in nature, that while exercising this
jurisdiction the Court is not entitled to act as an appellate
court, and that the findings of fact arrived at by inferior
Court or Tribunal as a result of the appreciation of evidence
cannot be reopened or questioned in writ proceedings.
However, having regard to the finding of fact recorded by
the Tribunal, writ of certiorari can be issued, if it is shown
that in recording such finding the Tribunal/Court had
erroneously refused to admit admissible and material
evidence or had erroneously admitted inadmissible evidence
which has influenced the impugned finding. Writ of certiorari
can be issued for correcting jurisdictional errors of the
inferior Courts/Tribunals, where they exercise jurisdiction not
vested in them or acted in excess of their jurisdiction or have
failed to exercise jurisdiction. Similarly, if a finding of fact is
based on no evidence that would be treated as an error of
law which can be corrected by writ of certiorari.

17.     In the present case also, this Court does not find any perversity and.
inherent lack of jurisdiction in the order impugned. Since the Election
Tribunal considered the entire material available on record meticulously and
in an elaborate manner and arrived at the conclusions, this Court does not
find any valid reasons to meddle with the impugned order in exercise of the
jurisdiction conferred under Article 226 of the Constitution of India.
18.     For the aforesaid reasons, writ petition is dismissed.  As a sequel,
miscellaneous petitions, if any, shall stand closed. There shall be no order as
to costs.
______________
A.V.SESHA SAI, J
Date:21.02.2017

copies obtained under the Right to Information Act certified by the Authorised Information Officer cannot be called as public documents or primary evidence. Explanation-2 of Section 62 makes the position clear. However, if a document is obtained under the Right to Information Act from a competent Authority, it can be asked to be taken as a certified copy if the original satisfies the definition of public document and no formal proof of the same is required. But, in the case of other private documents, the copies of which are obtained under the Right to Information Act, the provisions of Evidence Act with regard to secondary evidence have to be satisfied.

2015 Dec. http://judis.nic.in/Judis_Andhra/list_new2.asp?FileName=13179

THE HONBLE SRI JUSTICE A.RAMALINGESWARA RAO            

CIVIL REVISION PETITION Nos.3031 of 2015 and batch  

11-12-2015

Datti KameswariPetitioner

Singam Rao Sarath Chandra and another Respondent    

Counsel for the Petitioner : Sri Prakash Buddarapu

Counsel for the Respondent:  M/s. Bhaskari Advocates

<Gist :

>Head Note:

? Cases referred

1)(2010 (5) ALD 339)

2)AIR 2006 Madhya Pradesh 107  

HONBLE SRI JUSTICE A. RAMALINGESWARA RAO          

Civil Revision Petition Nos.3031 and 3048 of 2015

Date: 11-12-2015

C.R.P.No.3031 of 2015


COMMON ORDER:    

        These two Civil Revision Petitions are being disposed of by
this common order as they both involve a decision on the nature of
the document obtained under the Right to Information Act, 2005 in
civil proceedings.

C.R.P.No.3031 of 2015:
        The revision petitioner is the 5th respondent in E.P.No.1 of
2014 on the file of Senior Civil Judges Court, Parvathipuram,
Vizianagaram District.  The 1st respondent in the revision petition
filed an Election Petition challenging the election of the 5th
respondent, who was a successful candidate for the post of Member
of Mandal Praja Parishad Territorial Constituency of Gavarampeta
Territorial Constituency, Jiyyammavalasa Mandal Praja Parishad in
the elections held in the year 2014.  The 1st respondent herein, as
the petitioner in the  said Election Petition wanted to mark the
documents obtained under the Right to Information Act, 2005 as
exhibits for which the petitioner herein raised an objection on the
ground that the said documents are neither certified copies nor
originals.  The Tribunal overruled the objection raised by the
petitioner herein and allowed the marking of documents obtained
under the Right to Information Act, 2005 from the custodian of the
documents on the ground that the petitioner herein is not disputing
the correctness of those entries and the documents can be
permitted to be marked as a single exhibit, by order dated 16-06-
2015.  Challenging the said order, the present Civil Revision Petition
is filed.
C.R.P.No.3048 of 2015:
        The petitioners in the present Civil Revision Petition are the
landlords in R.C.No.305 of 2012 on the file of I Additional Rent
Controller, Hyderabad who filed a petition under Section 4 (1) of the
A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 for
fixation of fair rent in respect of a shop admeasuring 240 sft. of
super built-up area bearing Door No.22-5-73/2, situated at Balaji
Market, Charkaman, Hyderabad. The respondent-tenant filed certain
documents obtained under the Right to Information Act and an
objection was taken by the petitioner herein that those documents
cannot be marked.  The Rent Controller overruled the objection by
order dated 19-06-2015 and observed that those documents
obtained under the Right to Information Act are admissible as
secondary evidence under Section 63 of the Evidence Act, 1872 so
long as the Court has no reason to doubt that the said certified
copies are not faithful and accurate reproduction of the original
documents in custody of Government Departments.  

        Thus, in both cases, the nature of the documents obtained
under the Right to Information Act, 2005 and their admissibility was
in issue.  In both cases, the learned counsel for the objectors relied
on a decision of this Court in K. Bhaskar Rao v. K.A. Rama Rao
(2010 (5) ALD 339) and submitted that the xerox copies of the
documents which are certified as true copies under the Right to
Information Act, 2005 cannot be equated with certified copies
mentioned in the Evidence Act.

       In the light of the above issue, it is not necessary for this
Court to go into the merits of the respective cases.

      The Right to Information Act was enacted in the year 2005
and came into force with effect from 15-06-2005.  It provides for
designation of a Public Information Officer for obtaining information
with exemptions from such disclosure and the grounds for rejection
in appropriate cases.  Section 22 of the Act says that the provisions
of the said Act shall have overriding effect on the provisions of other
enactments including Official Secrets Act, which are not
inconsistent.

        Chapter-V of the Evidence Act, 1872 deals with documentary
evidence.  Section 61 says that the contents of the documents may
be proved either by primary evidence or by secondary evidence.
The primary evidence is stated to be the document itself produced
for the inspection of the Court under Section 62 of the Act.
Secondary evidence is defined under Section 63 of the Act.  As per
Section 64 of the Act, normally, the documents must be proved by
primary evidence except in the cases mentioned under the
provisions of the Act.  Section 65 provides for the circumstances
under which secondary evidence may be given.  Public documents
are defined under Section 74 of the Act.  Section 75 of the Act says
that all documents other than mentioned in Sec.74 are private.
Section 77 says that certified copies may be produced in proof of the
contents of the public documents or parts of the public documents of
which they purport to be copies.  The proof of different categories of
public documents is provided under Section 78 of the Act. Section
79 speaks of the presumption as to the genuineness of certified
copies.  The presumption of documents produced as record of
evidence is provided under Section 80 of the Act.  Section 81 deals
with presumption as to Gazettes, newspapers, private Acts of
Parliament and other documents.  Hence, the relevant sections of
the Evidence Act for the purpose of disposal of the present case are
as follows:
Section-62: Primary evidence:

Primary evidence means the documents itself produced
for the inspection of the Court.

Explanation 1Where a document is executed in  
several parts, each part is primary evidence of the
document :
Where a document is executed in counterpart, each
counterpart being executed by one or some of the
parties only, each counterpart is primary evidence as
against the parties executing it.

Explanation 2- Where a number of documents are all
made by one uniform process, as in the case of printing,
lithography, or photography, each is primary evidence of
the contents of the rest ; but, where they are all copies
of a common original, they are not primary evidence of
the contents of the original.
Section-65: Cases in which secondary evidence
relating to documents may be given

Secondary evidence may be given of the existence,
condition, or contents of a documents in the following
cases:-

(a) When the original is shown or appears to be in the
possession or power
of the person against whom the document is sought to
be proved , or
of any person out of reach of, or not subject to, the
process of the Court or
of any person legally bound to produce it,
and when, after the notice mentioned in section 66,
such person does not produce it;

(b) when the existence, condition or contents of the
original have been proved to be admitted in writing by
the person against whom it is proved or by his
representative in interest;

(c) when the original has been destroyed or lost, or
when the party offering evidence of its contents cannot,
for any other reason not arising from his own default or
neglect, produce it in reasonable time;

(d) when the original is of such a nature as not to be
easily movable;

(e) when the original is public document within the
meaning of section 74;

(f) when the original is a document of which a certified
copy is permitted by this Act, or by any other law in
force in 40[India] to be given in evidence ;

(g) when the originals consist of numerous accounts or
other documents which cannot conveniently be
examined in court and the fact to be proved it the
general result of the whole collection.
In cases (a), (c) and (d), any secondary evidence of the
contents of the document is admissible.

In case (b), the written admission is admissible.

In case (e) or (f), a certified copy of the document, but no
other kind of secondary evidence, admissible.
In case (g), evidence may be given as to the general
result of the documents by any person who has
examined them, and who is skilled in the examination
of such documents.
Section-74: Public documents

The following documents are public documents :-
(1) documents forming the acts, or records of the acts
      (i) of the sovereign authority,
      (ii) of official bodies and tribunals, and
(iii) of public officers, legislative, judicial and
executive, [of any part of India or of the
Commonwealth ] or of a foreign country;

(2) Public records kept 49[in any State] of private
documents.

        Hence, a reading of the above provisions makes it clear that
the copies obtained under the Right to Information Act certified by
the Authorised Information Officer cannot be called as public
documents or primary evidence.  Explanation-2 of Section 62 makes 
the position clear.  However, if a document is obtained under the
Right to Information Act from a competent Authority, it can be asked
to be taken as a certified copy if the original satisfies the definition of
public document and no formal proof of the same is required. But, in
the case of other private documents, the copies of which are
obtained under the Right to Information Act, the provisions of
Evidence Act with regard to secondary evidence have to be
satisfied.

        In the light of above provisions, it is necessary to consider the
decided cases on the point.  Since the parties were relying on the
decision of this Court in K. Bhaskar Rao v. K.A. Rama Rao , it is
necessary to consider the same first.  The said case arose out of a
suit for partition filed in the court of II Additional Senior Civil Judge,
Ranga Reddy District. The Court was considering the production of
additional evidence filed by the plaintiff as one of the issues.  In that
connection, this Court commented with regard to the documents
sought to be produced as additional evidence as follows:

I am unable to appreciate any of the said ingredients in the
affidavit filed in support of the said application.  It is not as if that
in spite of existence of due diligence, the appellant was not able
to trace out and produce these documents before the trial Court.
All the said documents relate to proceedings before the ULC
authorities and while the appellant got marked Ex.A.1 certified
copy of the declaration of the defendant under the Act, there is
no reason as to why he could not get the rest of the documents,
which he is now proposing to file by way of additional evidence.
Further, none of the said documents are certified copies and only
the Xerox copies of the documents are certified as true copies
under the Right to Information Act.  True copies cannot,
therefore, be equated to certified copies under the Evidence Act.
The afrfidavit does not state as to why these documents could
not be produced earlier nor it is supported by any other sufficient
cause as contemplated under Order 41 Rule 27 CPC.  

This Court observed that the true copies obtained under the Right to
Information Act cannot be equated to certified copies under the
Evidence Act. But that observation has to be understood in the light
of the facts of that case.

        In Rekha Rana and others v. Ratnashree Jain , the Madhya
Pradesh High Court had an occasion to consider the following
points.
1)      Whether a sale deed (duly registered) is a public
document?

2)      Whether a certified copy of a sale-deed issued by
the Registering Officer is a public document?

3)      Whether a certified copy of a public document can
be received in evidence without any further proof?

4)      What is the effect and efficacy of producing and
marking a certified copy of the sale deed?

After examination of Section 65 of the Evidence Act, it was held as
follows:
        .Section 65 further provides that in cases (a) (c) and
(d), any secondary evidence of the contents of document is
admissible; in case (b), the written admission is admissible;
in case (e) and (f), a certified copy of the document, but no
other kind of secondary evidence, is admissible.

        We therefore answer points (i) and (ii) as follows:
(i)     A Registered document (Deed of sale etc.) is not a
public document.  It is a private document.

(ii)    Book 1 kept in the Registration Offices under the
Registration Act, where the Registered documents
(private documents) are copied, entered or filed, is a
public document.

(iii)   A certified copy of a registered document, copies from
Book 1 and issued by the Registering Officer, is neither
a public document, nor a certified copy of a private
document, but is a certified copy of a public
document..

While answering Point No.(iii), the Court held as follows:
.We have already held that a certified copy of a
registered Instrument/document issued by the Registering
Officer, by copying from Book 1, is a certified copy of a
public document. It can therefore be produced in proof of
the contents of the public document or part of public
document of which it purports to be a copy. It can be
produced as secondary evidence of the public document
(entries in Book I), under Section 65(e) read with Section
77 of the Act without anything more. No foundation need
be laid for production of certified copy of secondary
evidence under Section 65(e) or (f). But then it will only
prove the contents of the original document, and not be
proof of execution of the original document. (Vide Section
57(5) of Registration Act read with Section 77 of Evidence
Act). This is because registration of a document is proof
that someone purporting to be 'X' the executant admitted
execution, but is not proof that 'X' executed the document,
We will elaborate on this aspect when dealing with Point
No. (iv)..

        While answering  Point No.(iv) with regard to production and
marking of a certified copy of a sale deed, which would amount to
proving the sale deed, it was held as follows:
..The position therefore is that a certified copy of a sale
deed issued by the Registration Officer under the
Registration Act can be produced and marked as secondary
evidence of a public document (that is Entries in Book 1
maintained under Section 51 of the Registration Act
containing the copy of the registered document). Such
certified copy issued by the Registration Officer in view of
the certificates copied therein and the certificate made while
issuing the certified copy will prove (i) that a document has
been presented before the Registration Officer for
registration; (ii) that execution had been admitted by the
person who claimed to be the executant of the document
and (iii) that the document was thereafter registered in the
Registration Office and entered (copied) in Book 1. It is not
however proof of the fact that original sale deed was duly
executed by the actual person described as Executant.
Production of a certified copy of a public document under
Section 65(e) or production of a certified copy under Section
65(f) is completely different from production of a certified
copy as secondary evidence of a private document (for eg, a
sale deed under clauses (a), (b) and (c) of Section 65.
18. Proving execution of a registered sale deed (or any other
registered document which is not required by law to be
attested) has two steps. The first step is production of the
original sale deed or lay the foundation for letting in
secondary evidence of the sale deed, byway of certified copy
of the sale deed, by showing the existence of any of the
circumstances mentioned in clauses (a), (b) and (c) of
Section 65. In other words, a certified copy can be offered as
secondary evidence of the original sale deed under Clause
(a) of Section 65, by establishing that the original is in the
possession or power of the person against whom the
document is sought to be proved, or in the possession or
power of any person out of reach of or not subject to the
process of the Court, or in the possession of any person
who is legally bound to produce it, and such person (of the
three categories) does not produce it in spite of notice under
Section 66 of the Act. A certified copy of the sale deed can
also be offered as secondary evidence under Clause (c) of
Section 65, by showing that the original is destroyed or lost
(or when the party offering evidence of its contents cannot,
for any other reason not arising from his own default or
neglect, produce it in reasonable time). Lastly a certified
copy can be offered as second evidence under Clause (b) of
Section 65, where the existence, condition or contents of
the (sic) has been admitted in writing by the person against
whom it is proved or by his representative in interest, and
such admission is proved.
18.1 The second step is to prove the execution of the deed
(whether what is produced in the original or certified copy
or other secondary evidence thereof given under Clause (a),
(b) or (c) of Section 65) as required by Section 67 of the Act,
where the document is not one which is required by law to
be attested or as required by Section 68 of the Act where
the document is one which by law is required to be attested.
This is because registration is not proof of execution. A
private document cannot be used in evidence unless its
execution is admitted by the party against whom it is
intended to be used, or it is established by proof that it is
duly executed. Due execution is proved by establishing that
the signature (or mark) in token of execution was affixed to
the document by the person who is stated to have executed
the document. This is normally done either (i) by examining
the executant of the document; or (ii) by examining a person
in whose presence the signature/mark was affixed to the
document; or (iii) by referring the document to a
handwriting expert and examining such expert; or (iv) by
examining a person acquainted with handwriting/signature
of the person who is supposed to have written/signed the
document; or (v) by requesting the Court to compare the
signature of the executant in the document with some
admitted signature of the person shown as executant; or (vi)
by proving admission by the person who is said to have
signed the document, that he signed it.
18.2 If the person producing the certified copy of a
registered instrument, without establishing the existence of
any of the grounds under Clause (a), (b) or (c) of Section 65,
seeks to mark the certified copy, then it will not be
secondary evidence of the original sale deed, but only be
secondary evidence of the entries in a public document,
that is the entries in Book 1 in the Registration Office which
issued the certified copy. Such certified copy marked
without laying foundation for receiving secondary evidence,
though admissible for the purpose of proving the contents
of the original document, will not be proof of execution of
the original document.
18.3 Certain amount of confusion exists because a certified
copy can be produced as secondary evidence either under
clauses (e) and (f) of Section 65 or under clauses (a), (b) or
(c) of Section 65. But the difference is that a certified copy is
the only mode of secondary evidence that is permissible in
cases falling under clauses (e) or (f) of Section 65. But in the
cases falling under clauses (a), (b) or (c), the secondary
evidence can be a certified copy in the case of a registered
instrument or by other modes described in Section 63 in
regard to unregistered documents. Be that as it may..

        Ultimately, the Court held as follows:
We may summarize the position thus:  

(i) Production and marking of a certified copy as secondary
evidence of a public document under Section 65(e) need not
be preceded by laying of any foundation for acceptance of
secondary evidence. This is the position even in regard to
certified copies of entries in Book I under Registration Act
relation to a private document copied therein.
(ii) Production and marking of a certified copy as secondary
evidence of a private document (either a registered
document like a sale deed or any unregistered document) is
permissible only after laying the foundation for acceptance
of secondary evidence under Clause (a), (b) or (c) of Section
65.
(iii) Production and marking of an original or certified copy
of a document does not dispense with the need for proof of
execution of the document. Execution has to be proved in a
manner known to law (Section 67 and 68 and ensuing
sections in chapter V of Evidence Act)
        A learned Single Judge of the same High Court in
W.P.No.7860 of 2014, dated 19-03-2015 held that the certified
copies of the map of the house and building construction permission
from Nigar Nigam obtained under the Right to Information Act, 2005
can be taken as secondary evidence and it was held as follows:

.Clause (f) of Section 65 of Evidence Act makes it
crystal clear that a certified copy permitted under the
Evidence Act or by any other law in force can be treated as
secondary evidence. Right to Information Act, in my view,
falls within the ambit of "by any other law in force in India".
The definition of "right to information" makes it clear that
certified copies of documents are given to the citizens under
their right to obtain information. In my view, the court
below has rightly opined that the documents can be
admitted as secondary evidence. I do not see any merit in
the contention that the documents obtained under the Act
of 2005 are either true copies or attested copies. The
definition aforesaid shows that the same are certified
copies. Even otherwise, it is interesting to note that in Black
Dictionary, the meaning of "certified copy" is as under:-
"Certified copy" - a copy of a document or record, signed or
certified as a true copy by the officer to whose custody
original is entrusted."
Since the documents are covered under section 65 of the
Evidence Act, there was no need to compare the same with
the originals..

        In view of the above analysis, the xerox copy certified by the
designated Public Information Officer under Right to Information Act
of the private documents are not certified copies within the meaning
of the provisions of Section 65 of the Evidence Act. They are merely
true copies of the private documents available in the records of the
particular Department.  The production and marking of such copies
is permissible only after laying a foundation for acceptance of
secondary evidence under clauses (a) (b) or (c) of Section 65 of the
Act. The condition prescribed under the above cases (a), (b) or (c) of
Section 65 of the Act have to be fulfilled before marking the true
copies obtained under the Right to Information Act. However, the
true copies of public documents certified by the designated
Information Officer can be taken as certified copies of the public
documents.

        Thus, in C.R.P.No.3031 of 2015, since the documents sought
to be produced are true copies of the public documents those
documents can be treated as certified copies, whereas in
C.R.P.No.3048 of 2015, the documents now sought to be produced  
are true copies of registered sale deeds, they can be marked as
secondary evidence, if the party seeking to mark those documents
fulfills the conditions prescribed under Section 65 (a) to (c) of the
Act.

         In view of the above, the C.R.P.No.3031 of 2015 is dismissed
and C.R.P.No.3048 of 2015 is disposed of with the above
observations. No costs.

___________________________    
A.RAMALINGESWARA RAO, J      
Date: 11-12-2015