- (1.) The present writ petition is against the order of the trial Court dated 15-9-2005 by which the trial Court allowed the application of the plaintiff-respondent under Section 65 of the Evidence Act and permitted the plaintiff to produce the copy of the family settlement dated 16-8-2003 as secondary evidence.
(2.) According to the learned counsel for the defendant-petitioner, the learned trial Court has committed serious error of law in allowing the application of the plaintiff-respondent and allowed the documents to be taken on record as secondary evidence under Section 65 of the Evidence Act. The trial Court without deciding about the execution of the document, its existence and correctness of the copy produced by the respondent as secondary evidence, allowed the document to be admitted in evidence, which is contrary to the provisions of Section 63 of the Evidence Act. According to the learned counsel for the petitioner, in view of the order dated 15-9-2005, the petitioner will be precluded from submitting that there was no original family settlement in existence because the order under Section 65 of the Evidence Act can be passed after holding that original document was in fact executed and was in existence, therefore, if the Court allowed the document to be admitted in evidence under Section 65 of the Evidence'Act then at latter stage the party seeking to rely upon the copy of the document admitted as secondary evidence, may need not to prove the existence of original document and the Court may presume that the document was in existence. In the alternative, once the document is admitted in evidence, under Section 65 of the Evidence Act then the burden shifts upon the defendant to prove that the document was not in existence whereas if the Court would have applied its mind and would have decided the issue about execution and existence of the document then it would have been the burden of plaintiff to prove the execution and existence of the family settlement dated 16-8-2003. Therefore, according to the learned counsel for the petitioner, the sequence for admitting the document as secondary evidence clearly shows that the Court is under obligation to first determine about the execution of the document, its existence and after finding prima facie proof of the existence and execution of the document and on finding that the document sought to be produced is true and correct copy of the document which falls in any of the clauses of Section 63 of the Evidence Act then only the document could have been admitted by the Court below.
(3.) The learned counsel for the petitioner relied upon several judgments in support of his above arguments but I do not find any reason to refer all those judgments because this Court is also of the view that a document which is or was in existence, for that document only secondary evidence can be produced. What documents are falling in the secondary evidence is given in Section 63 of the Evidence Act. But sofar as the contention of the learned counsel for the petitioner that the petitioner will be deprived from raising the objection about the admissibility of the document subsequently during trial of the suit is concerned, I do not find any force in the submission of the learned counsel for the petitioner in view of the decision of the Hon'ble Apex Court delivered in the case of R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V. P. Temple, ((2003) 8 SCC 752 : (AIR 2003 SC 4548)), wherein Hon'ble the Apex Court held that objection as to admissibility of evidence can be classified as (1) objection that the document sought to be proved is itself inadmissible and (2) objection directed not against the admissibility of the document but against the mode of proof thereof on the ground of irregularity or insufficiency. Hon'ble the Apex Court held that objection under category (1) can be raised even after the document has been marked as "an exhibit" or even in appeal or revision, but the objection under category (2) can be raised when the evidence is tendered but not after the document has been admitted in evidence marked as an exhibit. The objection raised by the petitioner is falling in the first category of objection because, according to the petitioner, the original family settlement was never executed and, therefore, never came into existence at any point of time. This objection is not objection about the mode of proof of the document but it goes to the root of the issue about the admissibility of the document. Once it is proved that the document was not in existence, then there arises no question of its having any copy thereof and, therefore, the very foundation of the document sought to be produced as secondary evidence will be lost and that will make the document no evidence in the eye of law. In view of the law declared by the Hon'ble Apex Court in R.V.E. Venkatachala Gounder's case (supra), the petitioner is free arid entitled to raise the objection about the admissibility of the secondary evidence as the issue about the existence of original document has not been decided by the trial Court in the impugned order despite the fact that the petitioner specifically raised that ground before the trial Court.;