9911796707
TMI Blog2010 (4) TMI 1224X X X X Extracts X X X X X X X X Extracts X X X X ..... ff filed the application stating that, he filed the suit for specific performance of agreement of sale against the defendants basing on an agreement of sale dated 05.02.1986; that, after filing of the suit, the plaintiff shifted his house on 27.2.1999 and while shifting the house, the original agreement of sale was lost; that, he made several efforts to trace out the original agreement of sale, but the same could not be traced till the date of filing of the petition, and therefore, he filed the petition seeking permission to receive the notarized copy of, 'the agreement of sale dated 05.02.1986 as secondary evidence.' 5. The defendants 1, 3 to 13 and 15 to 17 filed their counter denying the averments in the petition and stating that the main suit for specific performance of contract is filed basing on a fake, forged and created agreement of sale dated 05.02.1986; that, the defendants neither sold the schedule property to anybody nor signed nor put their impressions, on any document, and that they have not received any consideration nor issued any receipts; that, when the original agreement of sale was misplaced and not traced, how the Notary attested its copy without see ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .1986; that, the trial Court, after an elaborate consideration of the material on record, rightly allowed the petition, and there is no error apparent on the face of the record so as to interfere with the impugned order. Hence, he prayed to dismiss the Civil Revision Petition. 10. The suit is filed by the first respondent/plaintiff for enforcement of specific performance of agreement of sale dated 05.02.1986. According to the plaintiff, one Chintapati Yelamaiah executed agreement of sale on 05.02.1986 agreeing to sell Ac. 11.00 of land in survey Nos. 721,722 and 723 situated at Korremul village and Gram Panchayat, Ghatkesar Mandal, Ranga Reddy district, for a total sale consideration of ₹ 5,39,000/-, and at the time of entering into the agreement of sale, the plaintiff paid a sum of ₹ 50,000/- as advance money; that, the defendants 5 and 11 and late Chintapati Yelamaiah represented by his legal representatives defendants 1 to 4, admitted the same; that, thereafter, the plaintiff paid certain amounts towards balance sale consideration totaling to ₹ 5,39,000/- as evidenced by the receipts issued by the defendant No. 11 as General Power of Attorney holder of defen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essfully made for it, in the place or places where it was most likely to be found and of persons likely to have possession of the same. So, the party must show that, in good faith, he has exhausted reasonable source of information and means of discovery which the nature of the case would naturally suggest. Loss can never be proved absolutely and evidence regarding loss of the document by the person in whose custody the document ought to be, is yet to be established during trial. But, at this stage, a bare statement of person required to file document on affidavit that the document was lost, would be sufficient to permit to lead secondary evidence. 13. In the case on hand, a copy of the original agreement of sale dated 05.02.1986, was attested by a Notary, which is now sought to be received as secondary evidence. The learned Counsel for the petitioners herein vehemently contended that Notary is not empowered to attest a true copy, but he has only to verify, authenticate, certify or attest the execution of any instrument, under Section 8(1)(a) of the Notaries Act, 1952, and therefore, attested copy of the document by a Notary is not to be included as a certified copy within the me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cases provided for in the Section. It is a decision where Photostat copies of the document were sought to be marked as secondary evidence. In those circumstances, it is held that a document can be received as evidence under the head of secondary evidence only when the copies made from or compared with the original or certified copies or such other documents as enumerated in the above section. Since the document in question in this Case is an attested copy of the original, the above decision has no application to the facts of the present case. 16. The learned Counsel for the petitioners also placed reliance on a decision in Ram Suresh Singh v. Prabhat Singh alias Chhotu Singh and Anr. (2009) 6 SCC 681 : AIR 2009 SC 2805 wherein it is held that, we may not consider the certificate granted by the Principal of the latter school as only a Xerox copy thereof was filed inasmuch as the original having not been produced, the same was inadmissible in evidence. That is a case where Xerox copy of the age certificate was sought to be marked. Hence, the above decision has no application to the facts of this Case. 17. Similarly, the learned Counsel for the petitioners also placed relianc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the matter. Therefore, the Supreme Court held that the appropriate authority shall record finding after examining the original records. So, the said decision has no application to the present facts of the case. 21. The learned Counsel for the petitioners also placed strong reliance on a decision in Kalyan Singh v. Smt. Chhoti and Ors. AIR 1990 SC 396 wherein it is held thus: (para 25) The High Court said, and in our opinion very rightly, that Ex. 3 could not be regarded as secondary evidence. Section 63 of the Evidence Act mentions five kinds of secondary evidence. Clauses (1), (2) and (3) refer to copies of documents; Clause (4) refers to counter-parts of documents and Clause (5) refers to oral accounts of the contents of documents. Correctness of certified copies referred to in Clause (1) is presumed under Section 79; but that of other copies must be proved by proper evidence. A certified copy of a registered sale deed may be produced a secondary evidence in the absence of the original. But in the present case Ex. 3 is not certified copy. It is just an ordinary copy There is also no evidence regarding content of the original sale deed. Ex. 3 cannot therefore, be consider ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
