APHC010309272022 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3560] MONDAY, THE FIFTH DAY OF JANUARY TWO THOUSAND AND TWENTY SIX PRESENT THE HONOURABLE SRI JUSTICE SUBHENDU SAMANTA CIVIL REVISION PETITION NO: 1236/2022 Between: 1. PATTA VIJAYAKALA, W/O. GOVINDU, AGE 42 YEARS, R/O. H.NO.55-7-48, HB COLONY, VISAKHAPATNAM. ...PETITIONER AND 1. PATTA ARUNDHATI NAGVENI, W/o. Vishnumurthi, Age 63 Years, R/o. Rajeeva Nagar, Kurmannapalem, Gajuwaka Mandal, Visakhapatnam District. ...RESPONDENT Petition under Article 227 of the Constitution of India,praying that in the circumstances stated in the grounds filed herein, the High Court may be pleased begs to present this Memorandum of Civil Revision Petition assailing the order passed by the Additional Senior Civil Judge, Anakapalli in I.A.No.123/2022 in O.S.No.117/2018, dated.22.04.2022 IA NO: 1 OF 2022 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant stay of all further proceedings in 0.S.No.117/2018 on the file of the Additional Senior Civil Judge, Anakapalli., pending disposal of the main C.R.P. and pass IA NO: 1 OF 2025 2 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased may be pleased to extend the inter order dt.12- 07-2022 in I.A.No. 1/2022 in CRP.No. 1236/2022 as extended on 09-03-2023 by this Hon’ble Court., pending disposal of the main C.R.P. and pass IA NO: 2 OF 2025 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to extend the inter order dt.12- 07-2022 in I.A.No.1/2022 in CRP.No. 1236/2022 as extended on 09-03-2023 & 04.04.2025 by this Hon’ble Court., pending disposal of the main C.R.P. and pass Counsel for the Petitioner: 1. G VENKATA REDDY Counsel for the Respondent: 1. The Court made the following: 3 THE HONOURABLE SRI JUSTICE SUBHENDU SAMANTA CIVIL REVISION PETITION NO: 1236/2022 O R D E R: 1. The instant Revision Application has been preferred against an Order dated 22.04.2022 passed by the learned Additional Senior Civil Judge, Anakapalle, in I.A.No.123 of 2022 in O.S.No.117 of 2018. 2. It appears from the impugned order that the learned Court below has allowed an application of the defendant under Order VIII Rule 1(3) of the Code of Civil Procedure (for short, C.P.C.) to mark certified copy of certain documents as Exhibit “B” series in favour of the defendant. In a short docket order, the learned Court below has opined that, in view of the circumstances, the defendant has lost document Nos.2 and 3, secondary evidence are permitted. 3. On perusal of the affidavit filed in support of the said I.A., it appears that the defendant never stated that she lost those documents; rather, it was stated that they were mixed up with other bundles. The peculiar facts and circumstances of this case show that the plaintiff claimed declaration of possession of a gift settlement deed dated 03.06.2005, with a plea that the said gift settlement deed is in the possession of the defendant. The defendant contested the suit by filing a written statement but never stated that it was not in her possession. However, it has been stated by the defendant, that a separate deed of cancellation had already been executed. 4 4. Learned counsel for the petitioner apprises this Court that the learned Court below is proceeding with the matter after accepting certified copy of document Nos.2 and 3 by marking them as Exhibits “B” series in their certified copies. 5. In this particular case, the custody of the original gift settlement deed is in issue. Though the plaintiff has pleaded that the said deed was in the custody of the defendant, but the defendant, by her pleadings, has not denied the said fact and has stated that a separate deed of cancellation was executed. To decide the issue in hand, the learned Court below ought to have perused the original deed in question. However, the learned Court below has allowed the defendant to file certified copies of those two deeds. 6. According to the commentary on the Evidence Act, when a registered deed is the subject matter of a suit, the best evidence i.e., original deed is required to be produced. By virtue of a decision of the Hon’ble Supreme Court in J.Yashoda vs. K.Shobha Rani 1 , it appears that the Hon’ble Supreme Court has guided that the original document must be placed as primary evidence, if there are circumstances in which it could not possible to place primary evidence, then only production of secondary evidence is permissible. Mere filing of certified copies is not sufficient to decide the relevant questions regarding custody of the original deed. 7. In this matter, in my view, the learned Court below, without properly appreciating the affidavit filed by the defendant, has passed the 1 (2007) 5 SCC 730 5 impugned order. However, I make it clear that though the docket order impugned has permitted the present petitioner, being the plaintiff, to cross- examine the witness in respect of the proposed documents, such exercise by itself shall not amount to evaluation of the certified copies of the deeds in question vis-à-vis the original documents. 8. Accordingly, the instant Civil Revision Petition is disposed of directing the learned Court below to decide the suit in accordance with law, following the principles laid down by the Hon’ble Supreme Court in J. Yashoda (supra), particularly in Paragraphs 8 and 9, which read as under: “8. Essentially, secondary evidence is an evidence which may be given in the absence of that better evidence which law requires to be given first, when a proper explanation of its absence is given. The definition in Section 63 is exhaustive as the Section declares that secondary evidence "means and includes" and then follow the five kinds of secondary evidence. 9.The rule which is the most universal, namely that the best evidence the nature of the case will admit shall be produced, decides this objection that rule only means that, so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it. Section 65 deals with the proof of the contents of the documents tendered in evidence. In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. Under Section 64, documents are to be provided by primary evidence. Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said Section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the Section. In Ashok Dulichand v. Madahavlal Dube and Another [1975(4) SCC 664], it was inter alia held as follows: "After hearing the learned counsel for the parties, we are of the opinion that the order of the High Court in this respect calls for no interference. According to clause (a) of Section 65 of Indian 6 Evidence Act, Secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in 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 of any person legally bound to produce it, and when, after the notice mentioned in Section 66 such person does not produce it. Clauses (b) to (g) of Section 65 specify some other contingencies wherein secondary evidence relating to a document may be given, but we are not concerned with those clauses as it is the common case of the parties that the present case is not covered by those clauses. In order to bring his case within the purview of clause (a) of Section 65, the appellant filed applications on July 4, 1973, before respondent No. 1 was examined as a witness, praying that the said respondent be ordered to produce the original manuscript of which, according to the appellant, he had filed Photostat copy. Prayer was also made by the appellant that in case respondent no. 1 denied that the said manuscript had been written by him, the photostat copy might be got examined from a handwriting expert. The appellant also filed affidavit in support of his applications. It was however, nowhere stated in the affidavit that the original document of which the Photostat copy had been filed by the appellant was in the possession of Respondent No. 1. There was also no other material on the record to indicate the original document was in the possession of respondent no.1. The appellant further failed to explain as to what were the circumstances under which the Photostat copy was prepared and who was in possession of the original document at the time its photograph was taken. Respondent No. 1 in his affidavit denied being in possession appeared to the High Court to be not above suspicion. In view of all the circumstances, the High Court to be not above suspicion. In view of all the circumstances, the High Court came to the conclusion that no foundation had been laid by the appellant for leading secondary evidence in the shape of the Photostat copy. We find no infirmity in the above order of the High Court as might justify interference by this Court." 9. In my view, the learned Court below, while deciding the issue, shall take note of the merits and demerits arising out of the non-submission of the original document by the defendant. I make it clear that if the defendant intends to proceed with the suit without filing the original deed as required, the learned Court below shall take cognizance of the same and pass appropriate orders in accordance with law. The learned Court below is directed to dispose 7 of the suit as expeditiously as possible, most preferably within a period of six (06) weeks, after giving due opportunity to the parties. No costs. Consequently, pending miscellaneous applications, if any, shall stand closed. ____________________________ JUSTICE SUBHENDU SAMANTA Dated: 05.01.2026 SNI 8 42 THE HONOURABLE SRI JUSTICE SUBHENDU SAMANTA CIVIL REVISION PETITION NO: 1236/2022 DATED: 05.01.2026 SNI