IN THE
HIGH COURT OF JUDICATURE OF ANDHRA PRADESH
AT
HYDERABAD
THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY
Civil Revision Petition Nos.715, 725, 726, 729, 733 &
734 of 2012
Dated 01st March, 2012
Between:
Smt.Dault Khatoon and
others
…Petitioners
and
M.K.A.Baig
…Respondent
Counsel for the
petitioners: Sri R.A.Achuthanand
Counsel for the
respondent: ---
The Court
made the following:
COMMON ORDER:
These civil revision petitions arise out of three
different suits between the same parties. Hence, they are heard
and being disposed of together.
Even though notices have been served on the respondent in
all these cases, no one entered appearance on his behalf. At the hearing, there
is no representation for him.
I have heard Sri R.A.Achuthanand, learned counsel for the
petitioners in all these civil revision petitions, and perused the record.
The respondent filed O.S.Nos.3747, 3748 and 3749 of 2008
for eviction of the petitioners from the suit schedule properties. The petitioners have
filed written statements resisting the said suits. They have also filed
two different sets of IAs in all the three suits; one for receiving a copy of
the purported lease deed, dated 01.06.2002, and to treat the said lease deed as
secondary evidence under Section 63 of the Indian Evidence Act, 1872 (for short
‘the Act’). The details relating to the IAs and the CRPs filed
against the orders passed therein are shown in the table given below:
|
Sl.No.
|
O.S.No.
|
I.A.No.
|
Purpose
|
CRP No.
|
|
01.
|
O.S.No.3747/2008
|
I.A.No.24/2012
|
to treat the document as
secondary evidence
|
C.R.P.No.715/2012
|
|
02.
|
O.S.No.3747/2008
|
I.A.No.25/2012
|
to grant leave to receive the
lease deed
|
C.R.P.No.734/2012
|
|
03.
|
O.S.No.3748/2008
|
I.A.No.26/2012
|
to treat the document as
secondary evidence
|
C.R.P.No.726/2012
|
|
04.
|
O.S.No.3748/2008
|
I.A.No.27/2012
|
to grant leave to receive the
lease deed
|
C.R.P.No.725/2012
|
|
05.
|
O.S.No.3749/2008
|
I.A.No.28/2012
|
to treat the document as
secondary evidence
|
C.R.P.No.729/2012
|
|
06.
|
O.S.No.3749/2008
|
I.A.No.29/2012
|
to grant leave to receive the
lease deed
|
C.R.P.No.733/2012
|
It is the pleaded case of the petitioners that the
respondent-plaintiff in the plaint made a categorical averment that the
original lease deed entered into between the parties is misplaced and that the
same would be produced when it is traced. In the affidavits
filed in support of the interlocutory applications filed by the petitioners, it
is stated that the respondent has given defendant No.2 a singed copy of the
lease deed and that as the respondent has not chosen to file the original lease
deed, the said signed copy is proposed to be filed by the petitioners. The petitioners have
also come out with the reason for not filing the said document earlier as the
same was mixed up along with other papers.
The lower Court in its order observed that except contending
that the original lease deed, dated 01.06.2002, is under the custody of the
respondent-plaintiff, no proof was adduced in support of the said plea in order
to satisfy the requirements of Section 65(a) of the Act. The lower Court has
also held that the petitioners intended to file a photocopy of the document,
which is not permissible in law.
In my opinion, the Court below has fallen into a serious
error on both counts. As regards the finding that the
petitioners failed to prove that the original document is in the custody of the
respondent, the lower Court has failed to refer to paragraph-5 of the plaint in
the suits, wherein the respondent has himself averred that the original lease
deed has been misplaced and that the same would be produced as and when it is
traced. No further evidence is required for the petitioners to
prove their plea that the original lease deed is in the custody of the
respondent. Therefore, the provisions of Section 65(a) of the Act are
squarely attracted.
As regards the second ground of rejection referred to
above, in paragraph-4 of the affidavits filed in support of I.A.No.25 of 2012
in O.S.No.3747 of 2008, I.A.No.27 of 2012 in O.S.No.3748 of 2008 and I.A.No.29
of 2012 in O.S.No.3749 of 2008, the petitioners have specifically stated that
the plaintiff has given them a copy of the lease deed duly signed by the
parties. Therefore, what is sought to be filed by the petitioners
is not a mere photocopy of the lease deed, dated 01.06.2002, but also a
photocopy on which both the parties allegedly signed. As such, the
rejection of the petitioners’ request for receiving the signed copy of the
original document, dated 01.06.2002, cannot be sustained. As the original
document, which was admittedly in the custody of the respondent, has not been
filed, there is no bar on the petitioners to file the signed copy of the
original document which certainly constitutes secondary evidence under Section
63 of the Act.
For the above-mentioned reasons, the orders under the
revisions are set aside and the IAs filed by the petitioners stand
allowed. The lower Court is directed to proceed with the trial and
dispose of the suits as expeditiously as possible.
The civil revision petitions are accordingly allowed.
As a sequel to disposal of the civil revision petitions,
the interim orders, if any, granted shall stand vacated and the interlocutory
applications, if any, pending shall stand disposed of as infructuous.
C.V.NAGARJUNA REDDY,
J
01st March, 2012
VGB
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