Case Note & Summary
The petitioner, Rajendra Mahadev Todkar, filed a writ petition under Article 227 of the Constitution of India challenging an order dated 16 August 2016 passed by the 2nd Joint Civil Judge, Junior Division, Kolhapur, in Special Civil Suit No.125 of 2013. The impugned order allowed Exhibit-33, an application filed by Respondent No.1 (M/s. Paranjpe Schemes (Construction) Company Limited) seeking permission to lead secondary evidence in respect of about 20 letters produced along with the list at Exhibit-32. According to Respondent No.1, those letters were sent to the petitioner demanding payment of consideration amount from time to time. It was stated that the original letters were in possession of the petitioner, and therefore, an application was earlier filed under Section 66 of the Evidence Act, 1872, giving notice to the petitioner to produce those letters. However, the petitioner, in reply, stated that those letters were not in his custody or possession. Hence, Respondent No.1 filed the application at Exhibit-33 for allowing it to produce secondary evidence under Section 65(a) of the Evidence Act. The petitioner opposed the application contending, inter alia, that the conditions for leading secondary evidence were not satisfied. The trial court allowed the application, leading to the present petition. The High Court, after hearing both sides, held that the trial court's order was correct and did not warrant interference. The court noted that the petitioner had denied possession of the original letters, and therefore, the plaintiff was entitled to lead secondary evidence under Section 65(a) of the Evidence Act. The petition was dismissed.
Headnote
A) Evidence Act - Secondary Evidence - Section 65(a) and Section 66 - Notice to Produce - The plaintiff sought to lead secondary evidence of letters demanding payment, claiming originals were with the defendant. The defendant denied possession. The trial court allowed secondary evidence under Section 65(a) as the defendant failed to produce the documents after notice under Section 66. The High Court upheld the order, holding that once notice is given and the party fails to produce, secondary evidence is admissible. (Paras 1-4)
Issue of Consideration
Whether the trial court was justified in allowing the plaintiff to lead secondary evidence under Section 65(a) of the Evidence Act, 1872, when the defendant denied possession of the original letters.
Final Decision
The High Court dismissed the writ petition, upholding the trial court's order allowing secondary evidence.
Law Points
- Secondary evidence
- Section 65(a) Evidence Act
- 1872
- Section 66 Evidence Act
- Notice to produce documents
- Possession of documents
- Civil Procedure Code
- 1908
- Article 227 of Constitution of India
