APHC010380442025 IN THE HIGH COURT OF ANDHRA PRADESH WEDNESDAY, THE TWO THOUSAND AND TWENTY SIX THE HONOURABLE SRI JUSTICE TARLADA RAJASEKHAR RAO CIVIL REVISION PETITION No. 1842/2025 BETWEEN: 1. PRAMOD KUMAR AGARWALA @ ASHOK KUMAR AGARWALA, S/O.LATE NATHMALL AGARWALA, AGED 62 YEARS, R/O.AGARWAL BHAWAN, 4/428, VAISHALI, GHAZIABAD, UTTAPRADESH. 2. PAWAN KUMAR AGARWALA, S/PO.LATE NATHMALL AGANA/ALA, AGED 64 YEARS, R/O.AGARWAL BHAWAN, 4/428, VAISHALI, GHAZIABAD, UTTAPRADESH. 3. LADDU GOPAL AGARWALA @ PRIVIN AGARWALA,, NATHMALL AGANARALA, AGED 59 YEARS, R/O.AGARWAL BHAWAN, 4/428, VAISHALI, GHAZIABAD, UTTAPRADESH. 4. SHRAWAN KUMAR AGARWALA, S/O.LATE NATHMALL AGANA/ALA, AGED 57 YEARS, R/O.AGARWAL BHAWAN, 4/428, VAISHALI, GHAZIABAD, UTTAPRADESH. 5. NAWRATAN AGA S/O.LATE NATHMALL AGARWALA, AGED 55 YEARS, R/O.AGARWAL BHAWAN, 4/428, VAISHALI, GHAZIABAD, UTTAPRADESH. (PETITIONERS 2 TO 5 ARE BEING REPRESENTED BY THEIR GPA HOLDERS OF 1ST PETITIONER) Reserved on Pronounced on Uploaded on IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) WEDNESDAY, THE ELEVENTH DAY OF MARCH TWO THOUSAND AND TWENTY SIX PRESENT THE HONOURABLE SRI JUSTICE TARLADA RAJASEKHAR RAO CIVIL REVISION PETITION No. 1842/2025 PRAMOD KUMAR AGARWALA @ ASHOK KUMAR AGARWALA, S/O.LATE NATHMALL AGARWALA, AGED 62 YEARS, R/O.AGARWAL BHAWAN, 4/428, VAISHALI, GHAZIABAD, UTTAPRADESH. PAWAN KUMAR AGARWALA, S/PO.LATE NATHMALL AGANA/ALA, AGED 64 YEARS, R/O.AGARWAL BHAWAN, 4/428, VAISHALI, GHAZIABAD, UTTAPRADESH. LADDU GOPAL AGARWALA @ PRIVIN AGARWALA,, NATHMALL AGANARALA, AGED 59 YEARS, R/O.AGARWAL BHAWAN, 4/428, VAISHALI, GHAZIABAD, UTTAPRADESH. SHRAWAN KUMAR AGARWALA, S/O.LATE NATHMALL AGANA/ALA, AGED 57 YEARS, R/O.AGARWAL BHAWAN, 4/428, VAISHALI, GHAZIABAD, UTTAPRADESH. N AGARWALA @ SUNIL KUMAR AGARWALA, S/O.LATE NATHMALL AGARWALA, AGED 55 YEARS, R/O.AGARWAL BHAWAN, 4/428, VAISHALI, GHAZIABAD, UTTAPRADESH. (PETITIONERS 2 TO 5 ARE BEING REPRESENTED BY THEIR GPA HOLDERS OF 1ST ...PETITIONER(S) AND : 27.02.2026 Pronounced on : 11.03.2026 : 24.03.2026 IN THE HIGH COURT OF ANDHRA PRADESH [3330] ELEVENTH DAY OF MARCH THE HONOURABLE SRI JUSTICE TARLADA RAJASEKHAR RAO PRAMOD KUMAR AGARWALA @ ASHOK KUMAR AGARWALA, S/O.LATE NATHMALL AGARWALA, AGED 62 YEARS, R/O.AGARWAL BHAWAN, 4/428, VAISHALI, GHAZIABAD, PAWAN KUMAR AGARWALA, S/PO.LATE NATHMALL AGANA/ALA, AGED 64 YEARS, R/O.AGARWAL BHAWAN, 4/428, LADDU GOPAL AGARWALA @ PRIVIN AGARWALA,, S/O.LATE NATHMALL AGANARALA, AGED 59 YEARS, R/O.AGARWAL BHAWAN, 4/428, VAISHALI, GHAZIABAD, UTTAPRADESH. SHRAWAN KUMAR AGARWALA, S/O.LATE NATHMALL AGANA/ALA, AGED 57 YEARS, R/O.AGARWAL BHAWAN, 4/428, ALA @ SUNIL KUMAR AGARWALA, S/O.LATE NATHMALL AGARWALA, AGED 55 YEARS, R/O.AGARWAL BHAWAN, 4/428, VAISHALI, GHAZIABAD, UTTAPRADESH. (PETITIONERS 2 TO 5 ARE BEING REPRESENTED BY THEIR GPA HOLDERS OF 1ST ...PETITIONER(S) 2 1. RAJ KUMAR AGARWALA, S/o. LATE NATHMALLA GARWALA, AGED ABOUT 68 YEARS, R/O.69, CHOWRINGHEE ROAD, KOLKATA. 2. PARWATI DEVI AGARWALA, W/o.LATE SHYAM SUNDAR AGARWALA @ RADHASHYAM AGARWALA, AGED 72 YEARS, R/O. C/O. ANITA BAJA W/O.LAXMINARAYANA BAJAJ, FLAT NO.604 AND 704, SPANISH GARDENS, ZOO ROAD, FARUN NAGAR, GUWAHATI, ASSAM STATE. 3. SMT. ANITA BAJAJ, W/o.LAXMINARAYAN BABAJ, AGED 55 YEARS, R/O. C/O. ANITA BAJAJ W/O.LAXMINARAYANA BAJAJ, FLAT No.604 AND 704, SPANISH GARDENS, ZOO ROAD, FARUN NAGAR, GUWAHATI, ASSAM STATE. 4. SMT ANJU KANORIA, W/o. OM PRAKASH KANORIA, AGED ABOUT 50 YEARS, R/o. BOKARO STEEL CITY, PHASE-3, INDUSTRIAL AREA, OPP: SHOP FACTORY, BOKARO STEEL CITY, DHANBAD, JARKHAD. ...RESPONDENT(S): 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 to aggrieved by the order passed in I.No.1241 of 2022 in O.S.Npo.17 of 2019 dated 19-06-2025 on the file of the Court of the Principal District Judge, Vizianagaram. Counsel for the Petitioner(S): 1. M R S SRINIVAS Counsel for the Respondent(S): 1. CKR ASSOCIATES The Court made the following: 3 ORDER: The petitioners are plaintiffs in the suit and respondents are defendants in the suit. The plaintiffs filed I.A. 1241 of 2022 which was dismissed. For the sake of convenience, in this order, the parties will be referred to, as per their array in this Civil Revision Petition. 2. The petitioners herein filed an application I.A. No. 1241 of 2022 in O.S. No. 17 of 2019 on the file of the Principal District Judge, Vizianagram, under Order Section 65(a) of the Indian Evidence Act r/w Sec.151 of CPC to receive the photo copy of the panchayat settlement deed dated 14.05.1995 executed by the petitioners and the respondents viz., Raj Kumar Agarwala and Shyam Sundar Agarwala (deceased) before the village elders as secondary evidence and mark the same on behalf of the petitioners as the respondents have failed to produce the panchayat settlement deed dated 14.05.1995, even after notice issued under Order XII Rule 8 of CPC, otherwise the petitioners will suffer irreparable loss and injury. 3. The averments that made in the affidavit filed in support of the interlocutory application are that a suit has been instituted by the petitioners against the respondents for specific performance directing the respondents herein to execute a regular sale deed in their names, in case the respondents fail to execute the sale deed within said period, the Court may execute the sale deed in their favour in respect of the plaint 4 schedule property on the ground that the petitioners and the respondents constitute a joint family and they are the children of Nathmall Agarwala, who is the Kartha of Hindu Undivided Family, who also created a Trust in the name of M/s. Assam Property Trust for the benefit and welfare of the coparceners and died intestate on 13.07.1981. After the death of the Nathmall Agarwala disputes have been cropped up among the family members and they approached before the village elders and the village elders have recorded a Panchayat Settlement on 14.05.1995 and as per the panchayat settlement deed dated 14.05.1995, the property stood in the name of the respondents (particularly land situate in Vizianagram) has to be conveyed to the petitioners by the respondents by executing a registered deed. 4. The interlocutory application I.A. No. 1241 of 2022 is filed on the following grounds: That the petitioners contentions are that the original deed of the panchayat settlement deed dated 14.05.1995 was in the hands of respondent No.1 by name Raj Kumar Agarwala and a photo copy of the said document of the settlement deed filed as suit document No.2 despite a notice issued under Order XII Rule 8, the respondents have not produced the said settlement deed who is in possession of the property, hence filed the present application to allow the petitioners to mark the photocopy of the panchayat settlement deed dated 14.05.1995, 5 as secondary evidence to be admitted as foundational evidence, merely the admission and marking exhibit of a document does not prove the document automatically unless the same has been proved as per the procedure established under law. Admission of document doesn’t amount to proof and unregistered family agreement can be looked into, registration would necessary only if the terms of the family agreement is reduced into writing and mere memorandum prepared after the family arrangement for the purpose of the court for making necessary mutation, hence no registration is required and the document can be marked tentatively subject to objection, hence prayed the court to permit the petitioners to receive the photocopy of the panchayat settlement deed dated 14.05.1995 and to mark the said document subject to objection raised by the respondents at the time of marking the documents as there is no bar to file as secondary evidence. 5. On the other hand, the respondents have filed their counter to I.A. No.1241 of 2022 in the following and the same were extracted hereunder: A photostat copy cannot be received as secondary evidence and merely because the document is filed along with the plaint, no authenticity can be attached to such document since photostat copy is inadmissible as held in Nurukurthi Solman Raju Vs. Nurukurthi Veera Lakshmi reported in 2017 (5) ALT 178. 6 6. The original document of the said partition list itself is not duly stamped under Article 40 of Schedule 1-A of Stamp Act and therefore is inadmissible in evidence under Section 35 of Stamp Act. As original document itself is inadmissible in evidence for want of sufficient stamp duty, xerox copy of it cannot be marked as secondary evidence, as reported in Obelisetty Ramanadham Vs. Obelisetty Bhaskar Rao and others1 7. Xerox copy of the document in question would not fall within the meaning of instrument, the said document cannot be received as evidence even on condition of the payment of Stamp Duty and penalty for the reason that there is no question of such document being sent either for the purpose of impounding or collecting the stamp duty and penalty on such document, since such document would not fall within the definition of instrument as held in Sunkara Surya Prakash Rao Vs. Madireddi Narasimha Rao2. 8. Photocopy of a document being not an instrument cannot be impounded and assessed to stamp duty. Though impounded it has no legal validity for admissibility in evidence. 9. The petitioners who produced the document not explained when the Xerox copy was taken. 1 2008 (2) ALD 278. 2 2008 0 Supreme (AP) 1078 7 10. For receiving a Xerox copy of a document, such as Will, as secondary evidence, foundation must be laid stating that the contents of the document, the scribe, attestors and the person in possession of the document when original was lost, as held in Suddapalli Lakshmi Saroja V. Vishnubotla Murli Krishna and others3. 11. When the primary evidence i.e., document itself produced for inspection of the Court cannot be made out the recourse of secondary evidence is taken under Section 63 which document comes in secondary evidence are mentioned. Further Section 65 states about in case no secondary evidence relating to document may be given which shows that secondary evidence may be given of the existence condition or contents of 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 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. 12. The procedure prescribed is that the party desisting to make use of secondary evidence must in the first instance serve a notice upon the party in whose possession the original may be requiring him to produce the original and it is only when such notice is not complied with the right 3 2014 (5) ALT 439 8 to give secondary evidence arises. There are certain exceptions to the rule laid down in Section 66. 13. In order to enable the party to produce secondary evidence, it is necessary for the party to prove contents and execution of the original document in the first instance, if then proof of availability of the original. 14. It is stated that a notice was issued under Order 12, Rule 8 by the petitioners to the respondents to produce and show to the Court, the following documents in original which are in custody of the respondents and possession at the first hearing of the suit i.e., (1) Panchayat settlement deed, dt.14.05.1995, (2) settlement deed of sale in favour of the respondent No.1 and late Shyam Sundar Agarwala @ Radhashyam Agarwala, Dt.19.02.1969 for which objections were filed by the respondents and it is stated that they have categorically mentioned in the written statement and it is their specific case that the alleged document, dated 14.05.1995 is created, concocted, forged and the same is not in existence. 15. The respondents/defendants are contesting that absolutely there is no such alleged deed. dt. 14.05.1995 executed in between the plaintiffs and the defendants and the respondents / defendants never executed such a document and there is no such understanding or agreement or like nature in between the plaintiffs and the defendants in any manner. With regard to the existence of said document, it was 9 denied by the 1st defendant when the notice under Order 12 Rule 8 was issued. There is no specific notice under Sec.66 was issued to the defendants. On perusal of the written Petitusy statement, it was specifically mentioned that the plaintiffs have made a false statement on oath in the instant suit and also created, forged and fabricated document of the alleged panchayat settlement deed, Dt.14.05.1995. Hence, pleaded to dismiss the interlocutory application. 16. The Court answered the interlocutory application in the following: The learned trial Court after considering the submission of the both the petitioners counsel and respondents counsel, dismissed the application observing that mere assertion that alleged panchayat settlement deed was lying with the 1st respondent does not mean laying foundation of fact that the document is in possession of the respondents , as the petitioners have not laid factual foundation for giving secondary evidence, hence the photostat copy cannot be received as a secondary evidence in terms of Sec.63 of Indian Evidence Act, mainly because the document in question was photo copy and as there was no possibility of the document being compared with the original. 17. And there is no proof or evidence to show that the original was taken by the defendants by giving photostat to the petitioners / plaintiffs. Even if the copy of the document is received, the same cannot be impounded stamp duty and penalty. Here the petitioners failed to 10 prove the ingredients laid in Sec 65(A) of the Evidence Act as to existence condition of contents of document to receive as secondary evidence, hence the document cannot be received in evidence, accordingly the application was dismissed vide an order dt. 19.06.2025. 18. The said order in I.A. No. 1241 of 2022 is assailed in the present Civil Revision Petition under Article 227 Constitution of India reiterating the same contentions that raised before the trial Court both the counsels have relied on some judgments that are stated hereunder: Petitioners’ counsel relied on the following judgments: 1) Manjula vs. P. Raji (Deceased), 2) Murtaza Moosavi vs. Hemendra V. Shah and another reported in 2006 SCC OnLine AP 318, 3) Jagmail Singh and another vs. Karamjit Singh and others reported in (2020) 5 SCC 178, 4) Nawab Singh v. Inderjit Kaur reported in (1999) 4 SCC 413 for the proposition that the settled position of law is that secondary evidence may be admitted that by reason of natural human conduct everyone denies the custody of the document. The condition precedent for ordering the production of document can be inquired into with reference to the pleadings and the evidence if any lead before the trial Court. …. The Court must observe that having regard to the submission made by the petitioner’s counsel for they are in possession of the Xerox copy of the order is subject to 11 complying with the provision of Sections 65 and 66 of the Indian Evidence Act, they are entitled to produce secondary evidence as and when the same is produced, it shall be considered in accordance with law. 5) Bipin Shantilal Panchal v. State of Gujarat and another reported in (2001) 3 SCC 1, for the proposition that the Trial Court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections property evidence at the last stage of the final judgment. 6) Korukonda Chalapathi Rao and another v. Korukonda Annapurna Sampath Kumar reported in (2022) 15 SCC 475, for the proposition that an unregistered document affecting movable property may be received as an evidence for collateral transaction not required to be affected by registration instrument. Respondents’ counsel relied on the following judgment: 1) Suddapalli Lakshmi Saroja v. Vishnubotla Murli Krishna and others reported in 2014 SCC OnLine AP 1478, for the proposition that for receiving the secondary evidence Section 65 of the Act particularly stipulates the conditions under which the secondary evidence of a document can be received. If there is no dispute as to the existence or execution of the original document, the Courts would not face much difficulty in the context of receiving the secondary evidence thereof. 2) Tharammel Peethambaran and ors v. T. Ushakrishnan and ors. reported in Manu/SC/0133/2026, for the proposition that before secondary evidence can be admitted, the party relying on it must lay a factual foundation. This involves two subjects; Firstly, the party must prove that the original 12 document actually existed and was executed. Secondly, the party must establish valid reasons as to why the original cannot be furnished. 3) Koganti Venkata Siva Ramesh Prasad v. Gogineni Sailaja and others, reported in 2019 SCC OnLine AP207, The above quoted Hon’ble Apex Court Judgment indicates that prima facie, the burden is upon the person who asserts to prove the original is in the possession of other side, only then can validly request the production of the document. 4) J.Yashoda v. K. Shobha Rani, reported in (2007) 5 SCC 730, 5) T. Mahalakshmi Ammal and Another v. Krishnan Venkateswari and others. for the proposition that when the Court come to conclusion that no foundation has been laid for leading secondary evidence in the Photostat copy, the other party who claiming to produce secondary evidence shall not be permitted to lead secondary evidence. 19. The learned trial court judge has observed that mere assertion that alleged panchayat settlement deed was lying with the 1st respondent does not mean laying foundation of fact that the document is in possession of the respondents while dismissing the interlocutory application. 20. The Hon'ble Supreme Court in Ashok Dulichand v. Madahavlal Dube4, held that: “while dealing with a case under Section 65 (a) Evidence Act, upheld the decision of the High Court wherein it recorded a finding that the photostat copy did not appear to be above 4 (1975) 4 SCC 664 13 suspicion and could not be admitted. In arriving at this finding, the High Court considered the facts that there was no other material on the record (except the affidavit of appellant himself) to indicate that the original document was in the possession of respondent No. 1. The appellant 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 of or having anything to do with such document. Thus, it was held that no foundation had been laid by the appellant for leading secondary evidence in the shape of the photostat copy." 21. On perusal of the entitle order and the plaint copy after giving my anxious consideration to the arguments advanced by both the counsels for the petitioners and respondents this court delivers the following exposition: The petitioner herein filed the alleged panchayat settlement deed dated 14.05.1995 which is in Hindi, the said deed consists of 5 pages while the introductory line indicate the date as 14.05.1995: page 3 of the alleged deed states the date as 15.05.1995, and the date is mentioned as 23.02.1999 at the end of the document. This creates a discrepancy regarding the execution date of the deed. The alleged deed contains 13 (thirteen) clauses, either of the respondents are not the signatories or executants of the settlement deed. An additional page is attached to the alleged panchayat settlement deed that does not form part of the original 14 document; this page includes the signatures of the respondents alongside others. It can be inferred that the document is created for the purpose of the suit. Furthermore, according to the translated version of the alleged panchayat settlement deed, there is no such clause or condition indicating that the respondents will execute any documents in favour of the petitioners. The learned trial Judge also observed that as the alleged settlement was not in existence, they could not be said to be in possession of the respondents. When the respondents are not the executants of the alleged or purported settlement deed, the petitioners cannot insist or compel the respondents to produce the document under Order XII Rule 8 CPC, nor can adduce any secondary evidence in this regard. In the light of the findings given by this Court, this Court declines to go into the contentions regarding the admissibility of the document and other contentions raised in the affidavit filed in support the interlocutory application. 22. As this Court has not seen any perversity or illegality in the impugned order, hence the Civil Revision Petition is dismissed. However, there is no order as to costs. As a sequel, interlocutory applications, if any, pending in this Civil Revision Petition shall stand closed. __________________________________ JUSTICE TARLADA RAJASEKHAR RAO Date: 11.03.2026 Harin 15 8 THE HON’BLE SRI JUSTICE TARLADA RAJASEKHAR RAO C.R.P.No. 1842 OF 2025 Date: 11-03-2026 Harin