Sree Narayana Dharma Sangham Trust v. Surendran and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN TUESDAY, THE 23[RD] DAY OF AUGUST 2022 / 1ST BHADRA, 1944** **OP(C) NO. 2190 OF 2014** **AGAINST THE ORDER IN I.A.No.2124/2014 IN O.S.No.965/2012 DATED 21.05.2014 OF PRINCIPAL MUNSIFF COURT, NEYYATTINKARA** ## **PETITIONER/FIRST DEFENDANT IN O.S.:** SREE NARAYANA DHARMA SANGHAM TRUST, GENERAL SECRETARY, VARKALA SIVIGIRI MADAM, SWAMI RHITHAM BHARANANDA. BY ADVS. SRI.RENJITH B.MARAR SRI.V.G.ARUN NEYYATTINKARA SMT.RESHMI JACOB ## **RESPONDENTS/PLAINTIFFS:** 1 SURENDRANATH, AGED 53 YEARS, S/O.APPUKUTTAN, KEZHAKKUMKARA DESOM, MARANALLOOR VILLAGE, NEYYATTINKARA TALUK-695 121. 2 SUDHAKARAN, AGED 48 YEARS, S/O.APPUKUTTAN, KEZHAKKUMKARA DESOM, MARANALLOOR VILLAGE, NEYYATTINKARA TALUK-695 121. 3 SUKUMARI, AGED 50 YEARS, D/O.APPUKUTTAN, KEZHAKKUMKARA DESOM, MARANALLOOR VILLAGE, NEYYATTINKARA TALUK-695 121. 4 SUMATHI, AGED 78 YEARS, D/O.APPUKUTTAN, KEZHAKKUMKARA DESOM, MARANALLOOR VILLAGE, NEYYATTINKARA TALUK-695 121. 5 ARJUNAN, AGED 60 YEARS, S/O.DAMODHARAN, VADAKKUMKARA PUTHENVEEDU, CHENKALOOR, VELIYAMKOD, MARANALLOORDESOM, MARANALLOOR VILLAGE, NEYYATTINKARA TALUK-695 121. 6 VASANTHA, D/O.LEKSHMIKUTTY, KULATHINKARA VEEDU, CHENKALOOR, VELIYAMKOD, MARANALLOORDESOM, MARANALLOOR VILLAGE, NEYYATTINKARA TALUK-695 121. **OP(C).No.2190 OF 2014** **2** 7 RAMACHANDRAN, AGED 68 YEARS, S/O.SUKUMARAN, RATHEESH BHAVAN, VELIYAMKOD, MARANALLOORDESOM, MARANALLOOR VILLAGE,NEYYATTINKARA TALUK-695 121. BY ADVS. SRI.AJIT G ANJARLEKAR SRI.GOVIND PADMANAABHAN SRI.MANU V. SRI.RAM MOHAN.G. SRI.G.P.SHINOD THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **OP(C).No.2190 OF 2014** **3** **'CR'** ## **JUDGMENT** This Original Petition has been filed under Article 227 of the Constitution of India by the petitioner herein, who is the 1[st] defendant in O.S.No.965/2012, pending before the Principal Munsiff Court, Neyyattinkara, where O.S.No.261/2013 filed against the petitioner and others also has been pending. 2. The questions emerges in the Original Petition is whether copy of a document applied for, is a certified copy, the same can be issued? or the same is prohibited by law? 3. To be on the crux of the dispute, as per Ext.P5 order, the application put up by the petitioner to get copy of a certified/ registration copy of Otti and Kuzhikanam deed **OP(C).No.2190 OF 2014** **4** No.1174/1098 obtained from the Registrar Office and produced before the court, was disallowed by the Munsiff Court, in a case where the respondents raised contention that there is no provision to issue copy of the certified copy of a document. 4. In this case, the Munsiff Court disallowed the application for the reasons ## extracted hereunder: _“The reason stated for the present petition is that the deed was torn. It is not made out from the affidavit in support of the petition as to whether the original of deed No.1174/1098 was torn or the copy of original deed entered in Book No.1 kept in the Sub Registrar's Office was torn. If the register concerned was torn, it is not known what happened to the original deed. At the time of argument also, the petitioner's side could not clarify the said aspect. It assumes importance since the application is for getting copies of the certified copy of a document. Hence the petition lacks bonafide and it is liable to be dismissed.”_ 5. Heard the learned counsel for the **OP(C).No.2190 OF 2014** **5** petitioner as well as the respondents. 6. The dispute is confined to the question as to whether copy of a document applied for, is a certified copy, the same can be issued? or the same is prohibited by law? In fact, in the decision reported in _**Vivek Nair v. Puravankara Projects Ltd.,**_ _**Bangalore**_ **[2017 (3) KHC 387 : 2017 (3) KLT** **93],** this Court considered similar question with reference to Sections 64 and 65 of the Indian Evidence Act read with Rule 22 of Criminal Rules of Practice. It was held in paragraphs 9 and 10 as under: _“9. The probable objection to the issuance of certified copies to the petitioner is that the documents produced by the respondent are copies. S.64 Evidence Act declares that documents must be proved by primary evidence except in the cases mentioned in S.65. S.65 gives the situations when secondary evidence may be given. Copies other than certified copies are also secondary evidence if they satisfy the requirements of S.63. Thus the Indian_ **OP(C).No.2190 OF 2014** **6** _Evidence Act makes copies other than certified copies admissible in evidence. If a copy other than certified copy produced by a party is admitted in evidence in a case, the Court cannot refuse to issue its certified copy to the opposite side on the ground that the admitted document is only a copy. It is clear that there is no total embargo on issuing certified copy of a copy. This also supports the view that certified copies of documents produced along with the complaint - though they themselves are copies - may be issued to the accused._ _10. The petitioner is entitled to get copies of the documents produced by the respondent. Whether the certified copies are admissible in a case or not is not a matter to be looked into by the Court which issues the copies. The entitlement of an accused to get copies of the documents produced by the complainant does not depend upon the admissibility of the copies so issued. But to avoid any possible misuse, the Court may note in red ink at the foot of the certified copies that they are certified copies of copies.”_ 7. In this matter, the petitioner put up application before the Sub Registrar for **OP(C).No.2190 OF 2014** **7** getting a certified copy/registration copy of the document and the said application was not materialised since it was reported by the Sub Registrar that the document was torn and, therefore, the copy could not be issued. It is at this juncture, the petitioner put up application for getting copy of the certified copy of the Otti and Kuzhikanam deed No.1174/1098 before the Munsiff Court, explaining the above reasons. In _**Vivek Nair's**_ case (supra), this Court categorically held that if a copy other than certified copy produced by a party is admitted in evidence in a case, the court could not refuse to issue its certified copy to the opposite side on the ground that the admitted document is only a copy. It is therefore clear that there is no total embargo to issue certified copy of a copy. 8. It is relevant to note that the **OP(C).No.2190 OF 2014** ## **8** documents in original shall be produced as primary evidence as mandated under Section 64 of the Indian Evidence Act. However, Section 64 itself provides that except in cases mentioned under Section 65, 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_ **==> picture [261 x 10] intentionally omitted <==** _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_ **OP(C).No.2190 OF 2014** **9** _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 evidence;_ _(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._ _In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible._ _In case (b), the written admission is admissible._ _In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible._ _In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents._ **Obje** **OP(C).No.2190 OF 2014** ## **10** 9. Sub section (c) of Section 65 deals with the situation when the original has been destroyed or lost, or when the party offering evidence of its own contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time. In the given facts of this case, the petitioner attempted to get an authenticated copy of the settlement deed from the Sub Registrar concerned and the said attempt failed as it was reported that the document was torn akin to a situation as near to 'destruction' of the document mentioned in sub-section (c) of Section 65 and as such secondary evidence is permissible in the case of the document in question. In such cases, denying copy of the certified copy of a document shall have to be permitted to address the grievance of the parties and to show existence and contents of the document to substantiate the case put up **OP(C).No.2190 OF 2014** **11** by the parties concerned. 10. In the circumstances of the case, it is necessary in the interests of justice to allow the application for getting certified copy of the document applied for, though the same is a certified copy, leaving open the court concerned to decide whether the document can be admitted in evidence in accordance with law and to evaluate its probative value, if admitted in evidence. Therefore, the impugned order stands set aside and accordingly, this Original Petition stands allowed. Therefore, the learned Munsiff, Neyyattinkara is directed to issue copy of the document applied for, by following the procedure under Civil Rules of Practice. It is specifically ordered that while issuing copy, the court shall record in red ink at the foot note of the certified copy ## **OP(C).No.2190 OF 2014** ## **12** that “this is the copy of certified copy of the document” and make the said endorsement in red ink in all pages of the copy of the said document with signature of the copyist/ examiner/authorised signatory and affix the seal of the court in all pages nearby the signature, so as to convey an easy understanding to the reader of the document that the said document is copy of a copy, on a mere glimpse of the same. Registry is directed to forward copy of this judgment to the Subordinate courts with direction to comply the said procedure strictly and the Registry also shall follow the said procedure, while issuing copy of a copy of documents. Sd/- ## **A. BADHARUDEEN, JUDGE** WW **OP(C).No.2190 OF 2014** **13** ## **APPENDIX OF OP(C) 2190/2014** PETITIONER'S EXHIBITS: |EXHIBIT P1|TRUE COPY OF THE O.S NO.965/2012 BEFORE THE| |---|---| ||PRINCIPAL MUNSIFF, NEYYATTINAKA.| |EXHIBIT P2|TRUE COPY OF THE O.S.NO.1050-/2010 BEFORE| ||THE FIRST ADDITIONAL MUNSIFF COURT,| ||NEYYATTINKA.| |EXHIBIT P3|TRUE COPY OF O.S.261/2013 PENDING BEFORE| ||THE SECOND ADDITIONAL MUNSIFF COURT,| ||NEYYATTINAKA.| |EXHIBIT P4|TRUE COPY OF THE I.A NO.2124/2014 IN O.S| ||NO.965/2012 BEFORE THE PRINCIPAL MUNSIFF,| ||NEYYATTINKARA DATED 24-03-2014.| |EXHIBIT P5|TRUE COPY OF THE DISMISSAL ORDER OF THE IA| ||NO.2124/2014 IN O.S.965/2012 BEFORE THE| ||PRINCIPAL MUNSIFF, NEYYATTINKARA DATED 21-| ||05-2014.| |EXHIBIT P6|A TRUE COPY OF THE LETTER OF THE SUB-| ||REGISTRAR NEYYATTINKARA DATED 30-07-2014.|