1 APHC010395822024 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3310] FRIDAY ,THE SEVENTH DAY OF MARCH TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE DR JUSTICE K MANMADHA RAO CIVIL REVISION PETITION NO: 2032/2024 Between: Kondaveeti Ratnavathi, ...PETITIONER AND Toram Trivikrama Rao and Others ...RESPONDENT(S) Counsel for the Petitioner: 1. A VEERASWAMY Counsel for the Respondent(S): 1. The Court made the following: ORDER: This Civil Revision Petition is preferred aggrieved by the Docket order dated 09.08.2024 passed in I.A.No.05 of 2024 in O.S No.63 of 2015 on the file of Principal Civil Judge (Junior Division)-cum-Judicial Magistrate of First Class, Tanuku (for short “the trial Court”). 2. The petitioner herein is the plaintiff and the respondents No.1 to 3 herein are the defendants and the respondents No.4 to 7 are added as parties as per order in IA No.09 of 2022 dated 29.08.2023. 2 3. The facts of the case are that the petitioner herein filed a suit in O.S.No.63/2015 on the file of the Principal Civil Judge (Junior Division), Tanuku against the respondents No.1 to 3 herein for partition of the plaint A & B schedule properties into four equal shares by metes and bounds and to allot one such share to the petitioner/plaintiff with separate possession and for other reliefs. It is stated that the plaint schedule properties are the joint family properties available for partition between the petitioner and her siblings respondents No.1 to 3 herein. Respondents 4 to 7 were brought on record as the legal representatives of the deceased- 3rd respondent. It is stated that the father of the petitioner accidentally fell down on 17.07.2012, sustained grievous head injuries and became unconscious. Later he was admitted to 'Raju Gari Hospital' at Alamuru and he was referred for scanning on 18.07.2012 to Sri Vijaya Scan Centre at Palakol. After scanning his head and after examination of the scan report, the doctors informed the family members that the condition of the injured Toram Venkateswara Rao was critical and that he went into coma and ultimately passed away in coma on 02.09.2012. Subsequent to the death of the petitioner's father, the respondents No.1 & 2 herein hatched an evil plan with ulterior motive to knock away the entire joint family property for themselves and with a view to deprive the share of their sisters (daughters of the deceased), concocted a Will, just a day before the death of their father, alleged to have been executed by the petitioner's father bequeathing the properties to the sons. It is stated that the scan report and other medical records were lost due to fire. However, recently, the petitioner could trace out a photocopy of the scanning report dated 18.7.2012 issued by Dr. Ankur Gadodia, Consultant Radiologist, Sri Vijaya Scan Centre. 3 The petitioner filed the said photocopy along with the impugned I.A.No.5 of 2024 before the trial Court to mark the same as exhibit on behalf of the petitioner/plaintiff. But the same was dismissed vide docket order dated 9.8.2024. Hence the present civil revision petition. 4. Heard Sri A. Veerswamy, learned counsel appearing for the petitioner. Perused the material on record. 5. On hearing, learned counsel for the petitioner while reiterating the averments made in the affidavit, submits that the docket order of the court below is erroneous and contrary to law and amounts to irregular exercise of jurisdiction. He submits that the trial court miserably failed in appreciating the facts of the case and without considering all the crucial aspects of the case, dismissed the said application which is contrary to law. He submits that the trial Court ought to have seen that the photocopy of the report is corroborative in nature with the facts set out at para 8 of the plaint, which facts are also reflected in the legal notice got issued on behalf of the petitioner/plaintiff and that on permitting the petitioner/ plaintiff to lead secondary evidence, the same will be established by examining the concerned person from the hospital. Learned counsel mainly contended that the court below ought to have seen that the requirements as mandated under Section 65 of the Evidence Act more particularly Section 65(c ) are more fully satisfied in the instant case and that the petitioner/plaintiff is entitled to lead secondary evidence related to the medical incapability and the lack of sound and disposing state of mind on the date of alleged execution of Will by father of the petitioner. In view of the above, learned counsel requests this 4 Court to allow the present revision petition by setting aside the impugned docket order. 6. Perused the material on record. 7. It is an admitted fact that the petitioner herein filed suit in O.S.No.63/2015 on the file of the Principal Civil Judge (Junior Division), Tanuku against the respondents No.1 to 3 herein for partition of the plaint A & B schedule properties into four equal shares by metes and bounds and to allot one such share to the petitioner/plaintiff with separate possession and for other reliefs during pendency of the suit, the 3rd respondent/defendant died and the legal representatives of the deceased-3rd defendant came on record. 8. As seen from the impugned docket order, it is observed that, the petitioner’s father by name T. Venkateswara Rao sustained injury and fell in Coma on 17.07.2012. On that, she took her father to Raju Gari Hospital a Alamuru. There the doctor by name Dr. P.V.S.S.N. Raju referred her father to Sri Vijay Scanning Center, Palakole, on 18.07.2012. Dr. Ankur Gododia, Consultant Radiologis given his report after taking the scanning with his opinion. It is further stated that till demise of her father on 02.09.2012, all these days her father was in Coma. Recently the Photostat copy of scanning report was traced out from old papers and the same was brought to the notice of DW1 during the course of cross-examination. During the course of cross-examination, the DW1 admitted that the said Photostat copy contain his father name/T. Venkateswara Rao. It is also observed that original report and other report was burnt after the death of 5 her father, there is no other source to prove that her father suffered with severe injury and her father was in Coma from 17.07.2012 till his death i.e., 02.09.2012. 9. It is also observed from the impugned order that, wherein, the trial Court held that, on a perusal of the averments of the plaint and petition, the Petitioner in 8th Para categorically mentioned about the accident incident to her father/T. Venkateswara Rao and got mentioned about sending of T. Venkateswara Rao to Vijaya Scanning Center, Palakole on 18.07.2012. The Petitioner did not mention specifically when the Medical reports of T. Venkateswara Rao were burnt and when the Photostat copy of scanning report was traced. 10. It is pertinent to mention here that the Section 65 of the Indian Evidence Act, which reads as follows: 65. Cases in which secondary evidence relating to documents may be given-Secondary evidence may be given of the existence, condition, or contents a document 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 ach 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 a 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 '[India] to be given in evidence²; 6 (g) when the originals consists of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection. 11. On a plain reading of the above, it is observed that the requirements as mandated under Section 65 of the Evidence Act more particularly Section 65(c ) are more fully satisfied in the instant case and that the petitioner/plaintiff is entitled to lead secondary evidence related to the medical incapability and the lack of sound and disposing state of mind on the date of alleged execution of the Will by the father of the petitioner. 12. In view of the foregoing discussion, this Court deems fit to allow the present civil revision petition while setting aside the impugned order. 13. Accordingly, the Civil Revision Petition is allowed and the order dated 09.08.2024 passed in I.A.No.05 of 2024 in O.S No.63 of 2015 on the file of Principal Civil Judge (Junior Division)-cum-Judicial Magistrate of First Class, Tanuku is hereby set aside. Further, since the suit is of the year 2015, the trial Court is also directed to dispose of the suit as expeditiously as possible. There shall be no order as to costs. 14. As a sequel, all the pending miscellaneous applications shall stand closed. ____________________________ DR. K. MANMADHA RAO, J. Date : -03-2025 Gvl 7 HON’BLE DR. JUSTICE K. MANMADHA RAO CIVIL REVISION PETITION No.2032 of 2024 Date : 07 .03.2025 Gvl