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2015 SCC OnLine Hyd 389 : (2016) 2 ALD 31 : AIR 2016 Hyd
112 : (2016) 2 ICC 302 : (2016) 1 ALT 700 : (2016) 2 CCC 288
In the High Court of Hyderabad at Hyderabad
(BEFORE A. RAMALINGESWARA RAO, J.)
Datti Kameswari .…. Petitioner
v.
Singam Rao Sarath Chandra and another .….
Respondents
Counsel for the Petitioner : Sri. Prakash Buddarapu
Counsel for the Respondent : M/s. Bhaskari Advocates
Civil Revision Petition Nos. 3031 and 3048 of 2015
Decided on December 11, 2015
COMMON ORDER
A. RAMALINGESWARA RAO, J.:— These two Civil Revision Petitions
are being disposed of by this common order as they both involve a
decision on the nature of the document obtained under the Right to
Information Act, 2005 in civil proceedings.
C.R.P. No. 3031 of 2015:
2. The revision petitioner is the 5th respondent in E.P. No. 1 of 2014
on the file of Senior Civil Judges Court, Parvathipuram, Vizianagaram
District. The 1st respondent in the revision petition filed an Election
Petition challenging the election of the 5th respondent, who was a
successful candidate for the post of Member of Mandal Praja Parishad
Territorial Constituency of Gavarampeta Territorial Constituency,
Jiyyammavalasa Mandal Praja Parishad in the elections held in the year
2014. The 1st respondent herein, as the petitioner in the said Election
Petition wanted to mark the documents obtained under the Right to
Information Act, 2005 as exhibits for which the petitioner herein raised
an objection on the ground that the said documents are neither
certified copies nor originals. The Tribunal overruled the objection
raised by the petitioner herein and allowed the marking of documents
obtained under the Right to Information Act, 2005 from the custodian
of the documents on the ground that the petitioner herein is not
disputing the correctness of those entries and the documents can be
permitted to be marked as a single exhibit, by order dated 16-06-2015.
Challenging the said order, the present Civil Revision Petition is filed.
C.R.P. No. 3048 of 2015:
3. The petitioners in the present Civil Revision Petition are the
landlords in R.C. No. 305 of 2012 on the file of I Additional Rent
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Controller, Hyderabad who filed a petition under Section 4(1) of the
A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 for fixation
of fair rent in respect of a shop admeasuring 240 sft. of super built-up
area bearing Door No. 22-5-73/2, situated at Balaji Market, Charkaman,
Hyderabad. The respondent-tenant filed certain documents obtained
under the Right to Information Act and an objection was taken by the
petitioner herein that those documents cannot be marked. The Rent
Controller overruled the objection by order dated 19-06-2015 and
observed that those documents obtained under the Right to
Information Act are admissible as secondary evidence under Section 63
of the Evidence Act, 1872 so long as the Court has no reason to doubt
that the said certified copies are not faithful and accurate reproduction
of the original documents in custody of Government Departments.
4. Thus, in both cases, the nature of the documents obtained under
the Right to Information Act, 2005 and their admissibility was in issue.
In both cases, the learned counsel for the objectors relied on a decision
of this Court in K. Bhaskar Rao v. K.A. Rama Rao ((2010) 5 ALD 339)
and submitted that the xerox copies of the documents which are
certified as true copies under the Right to Information Act, 2005 cannot
be equated with certified copies mentioned in the Evidence Act.
5. In the light of the above issue, it is not necessary for this Court to
go into the merits of the respective cases.
6. The Right to Information Act was enacted in the year 2005 and
came into force with effect from 15-06-2005. It provides for
designation of a Public Information Officer for obtaining information
with exemptions from such disclosure and the grounds for rejection in
appropriate cases. Section 22 of the Act says that the provisions of the
said Act shall have overriding effect on the provisions of other
enactments including Official Secrets Act, which are not inconsistent.
7. Chapter-V of the Evidence Act, 1872 deals with documentary
evidence. Section 61 says that the contents of the documents may be
proved either by primary evidence or by secondary evidence. The
primary evidence is stated to be the document itself produced for the
inspection of the Court under Section 62 of the Act. Secondary evidence
is defined under Section 63 of the Act. As per Section 64 of the Act,
normally, the documents must be proved by primary evidence except in
the cases mentioned under the provisions of the Act. Section 65
provides for the circumstances under which secondary evidence may be
given. Public documents are defined under Section 74 of the Act.
Section 75 of the Act says that all documents other than mentioned in
Sec. 74 are private. Section 77 says that certified copies may be
produced in proof of the contents of the public documents or parts of
the public documents of which they purport to be copies. The proof of
different categories of public documents is provided under Section 78 of
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the Act. Section 79 speaks of the presumption as to the genuineness of
certified copies. The presumption of documents produced as record of
evidence is provided under Section 80 of the Act. Section 81 deals with
presumption as to Gazettes, newspapers, private Acts of Parliament and
other documents. Hence, the relevant sections of the Evidence Act for
the purpose of disposal of the present case are as follows:
Section-62 : Primary evidence:
Primary evidence means the documents itself produced for the
inspection of the Court.
Explanation 1 Where a document is executed in several parts,
each part is primary evidence of the document:
Where a document is executed in counterpart, each
counterpart being executed by one or some of the parties only,
each counterpart is primary evidence as against the parties
executing it.
Explanation 2-Where a number of documents are all made by one
uniform process, as in the case of printing, lithography, or
photography, each is primary evidence of the contents of the rest;
but, where they are all copies of a common original, they are not
primary evidence of the contents of the original.
Section-65 : Cases in which secondary evidence relating to
documents may be given Secondary evidence may be given of the
existence, condition, or contents of a documents 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 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 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 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 40[India]
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to be given in evidence;
(g) when the originals consist of numerous accounts or other
documents which cannot conveniently be examined in court
and the fact to be proved it 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, 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.
Section-74 : Public documents
8. The following documents are public documents : -
(1) documents forming the acts, or records of the acts
(i) of the sovereign authority,
(ii) of official bodies and tribunals, and
(iii) of public officers, legislative, judicial and executive, [of any
part of India or of the Commonwealth] or of a foreign country;
(2) Public records kept 49[in any State] of private documents.
9. Hence, a reading of the above provisions makes it clear that the
copies obtained under the Right to Information Act certified by the
Authorised Information Officer cannot be called as public documents or
primary evidence. Explanation-2 of Section 62 makes the position clear.
However, if a document is obtained under the Right to Information Act
from a competent Authority, it can be asked to be taken as a certified
copy if the original satisfies the definition of public document and no
formal proof of the same is required. But, in the case of other private
documents, the copies of which are obtained under the Right to
Information Act, the provisions of Evidence Act with regard to
secondary evidence have to be satisfied.
10. In the light of above provisions, it is necessary to consider the
decided cases on the point. Since the parties were relying on the
decision of this Court in K. Bhaskar Rao v. K.A. Rama Rao, it is
necessary to consider the same first. The said case arose out of a suit
for partition filed in the court of II Additional Senior Civil Judge, Ranga
Reddy District. The Court was considering the production of additional
evidence filed by the plaintiff as one of the issues. In that connection,
this Court commented with regard to the documents sought to be
produced as additional evidence as follows:
I am unable to appreciate any of the said ingredients in the
affidavit filed in support of the said application. It is not as if that in
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spite of existence of due diligence, the appellant was not able to
trace out and produce these documents before the trial Court. All the
said documents relate to proceedings before the ULC authorities and
while the appellant got marked Ex.A.1 certified copy of the
declaration of the defendant under the Act, there is no reason as to
why he could not get the rest of the documents, which he is now
proposing to file by way of additional evidence. Further, none of the
said documents are certified copies and only the Xerox copies of the
documents are certified as true copies under the Right to
Information Act. True copies cannot, therefore, be equated to
certified copies under the Evidence Act. The afrfidavit does not state
as to why these documents could not be produced earlier nor it is
supported by any other sufficient cause as contemplated under Order
41 Rule 27 CPC.
This Court observed that the true copies obtained under the Right
to Information Act cannot be equated to certified copies under the
Evidence Act. But that observation has to be understood in the light
of the facts of that case.
11. In Rekha Rana v. Ratnashree Jain, the Madhya Pradesh High
Court had an occasion to consider the following points.
1) Whether a sale deed (duly registered) is a public document?
2) Whether a certified copy of a sale-deed issued by the Registering
Officer is a public document?
3) Whether a certified copy of a public document can be received in
evidence without any further proof?
4) What is the effect and efficacy of producing and marking a
certified copy of the sale deed?
12. After examination of Section 65 of the Evidence Act, it was held
as follows:
.Section 65 further provides that in cases (a)(c) and (d), any
secondary evidence of the contents of document is admissible; in
case (b), the written admission is admissible; in case (e) and (f), a
certified copy of the document, but no other kind of secondary
evidence, is admissible.
We therefore answer points (i) and (ii) as follows:
(i) A Registered document (Deed of sale etc.) is not a public
document. It is a private document.
(ii) Book 1 kept in the Registration Offices under the Registration
Act, where the Registered documents (private documents) are
copied, entered or filed, is a public document.
(iii) A certified copy of a registered document, copies from Book 1
and issued by the Registering Officer, is neither a public
document, nor a certified copy of a private document, but is a
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certified copy of a public document..
13. While answering Point No. (iii), the Court held as follows:
.We have already held that a certified copy of a registered
Instrument/document issued by the Registering Officer, by copying
from Book 1, is a certified copy of a public document. It can
therefore be produced in proof of the contents of the public
document or part of public document of which it purports to be a
copy. It can be produced as secondary evidence of the public
document (entries in Book I), under Section 65(e) read with Section
77 of the Act without anything more. No foundation need be laid for
production of certified copy of secondary evidence under Section 65
(e) or (f). But then it will only prove the contents of the original
document, and not be proof of execution of the original document.
(Vide Section 57(5) of Registration Act read with Section 77 of
Evidence Act). This is because registration of a document is proof
that someone purporting to be ‘X’ the executant admitted execution,
but is not proof that ‘X’ executed the document, We will elaborate on
this aspect when dealing with Point No. (iv)..
14. While answering Point No. (iv) with regard to production and
marking of a certified copy of a sale deed, which would amount to
proving the sale deed, it was held as follows:
..The position therefore is that a certified copy of a sale deed
issued by the Registration Officer under the Registration Act can be
produced and marked as secondary evidence of a public document
(that is Entries in Book 1 maintained under Section 51 of the
Registration Act containing the copy of the registered document).
Such certified copy issued by the Registration Officer in view of the
certificates copied therein and the certificate made while issuing the
certified copy will prove (i) that a document has been presented
before the Registration Officer for registration; (ii) that execution
had been admitted by the person who claimed to be the executant of
the document and (iii) that the document was thereafter registered
in the Registration Office and entered (copied) in Book 1. It is not
however proof of the fact that original sale deed was duly executed
by the actual person described as Executant. Production of a certified
copy of a public document under Section 65(e) or production of a
certified copy under Section 65(f) is completely different from
production of a certified copy as secondary evidence of a private
document (for eg, a sale deed under clauses (a), (b) and (c) of
Section 65.
18. Proving execution of a registered sale deed (or any other
registered document which is not required by law to be attested) has
two steps. The first step is production of the original sale deed or lay
the foundation for letting in secondary evidence of the sale deed,
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byway of certified copy of the sale deed, by showing the existence of
any of the circumstances mentioned in clauses (a), (b) and (c) of
Section 65. In other words, a certified copy can be offered as
secondary evidence of the original sale deed under Clause (a) of
Section 65, by establishing that the original is in the possession or
power of the person against whom the document is sought to be
proved, or in the possession or power of any person out of reach of or
not subject to the process of the Court, or in the possession of any
person who is legally bound to produce it, and such person (of the
three categories) does not produce it in spite of notice under Section
66 of the Act. A certified copy of the sale deed can also be offered as
secondary evidence under Clause (c) of Section 65, by showing that
the original is destroyed or lost (or when the party offering evidence
of its contents cannot, for any other reason not arising from his own
default or neglect, produce it in reasonable time). Lastly a certified
copy can be offered as second evidence under Clause (b) of Section
65, where the existence, condition or contents of the (sic) has been
admitted in writing by the person against whom it is proved or by
his representative in interest, and such admission is proved.
18.1 The second step is to prove the execution of the deed
(whether what is produced in the original or certified copy or other
secondary evidence thereof given under Clause (a), (b) or (c) of
Section 65) as required by Section 67 of the Act, where the
document is not one which is required by law to be attested or as
required by Section 68 of the Act where the document is one which
by law is required to be attested. This is because registration is not
proof of execution. A private document cannot be used in evidence
unless its execution is admitted by the party against whom it is
intended to be used, or it is established by proof that it is duly
executed. Due execution is proved by establishing that the signature
(or mark) in token of execution was affixed to the document by the
person who is stated to have executed the document. This is
normally done either (i) by examining the executant of the
document; or (ii) by examining a person in whose presence the
signature/mark was affixed to the document; or (iii) by referring the
document to a handwriting expert and examining such expert; or
(iv) by examining a person acquainted with handwriting/signature of
the person who is supposed to have written/signed the document; or
(v) by requesting the Court to compare the signature of the
executant in the document with some admitted signature of the
person shown as executant; or (vi) by proving admission by the
person who is said to have signed the document, that he signed it.
18.2 If the person producing the certified copy of a registered
instrument, without establishing the existence of any of the grounds
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under Clause (a), (b) or (c) of Section 65, seeks to mark the certified
copy, then it will not be secondary evidence of the original sale deed,
but only be secondary evidence of the entries in a public document,
that is the entries in Book 1 in the Registration Office which issued
the certified copy. Such certified copy marked without laying
foundation for receiving secondary evidence, though admissible for
the purpose of proving the contents of the original document, will
not be proof of execution of the original document.
18.3 Certain amount of confusion exists because a certified copy
can be produced as secondary evidence either under clauses (e) and
(f) of Section 65 or under clauses (a), (b) or (c) of Section 65. But
the difference is that a certified copy is the only mode of secondary
evidence that is permissible in cases falling under clauses (e) or (f)
of Section 65. But in the cases falling under clauses (a), (b) or (c),
the secondary evidence can be a certified copy in the case of a
registered instrument or by other modes described in Section 63 in
regard to unregistered documents. Be that as it may..
15. Ultimately, the Court held as follows:
We may summarize the position thus:
(i) Production and marking of a certified copy as secondary
evidence of a public document under Section 65(e) need not be
preceded by laying of any foundation for acceptance of
secondary evidence. This is the position even in regard to
certified copies of entries in Book I under Registration Act
relation to a private document copied therein.
(ii) Production and marking of a certified copy as secondary
evidence of a private document (either a registered document
like a sale deed or any unregistered document) is permissible
only after laying the foundation for acceptance of secondary
evidence under Clause (a), (b) or (c) of Section 65.
(iii) Production and marking of an original or certified copy of a
document does not dispense with the need for proof of
execution of the document. Execution has to be proved in a
manner known to law (Section 67 and 68 and ensuing sections
in chapter V of Evidence Act)
16. A learned Single Judge of the same High Court in W.P. No. 7860
of 2014, dated 19-03-2015 held that the certified copies of the map of
the house and building construction permission from Nigar Nigam
obtained under the Right to Information Act, 2005 can be taken as
secondary evidence and it was held as follows:
.Clause (f) of Section 65 of Evidence Act makes it crystal clear
that a certified copy permitted under the Evidence Act or by any
other law in force can be treated as secondary evidence. Right to
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Information Act, in my view, falls within the ambit of “by any other
law in force in India”. The definition of “right to information” makes
it clear that certified copies of documents are given to the citizens
under their right to obtain information. In my view, the court below
has rightly opined that the documents can be admitted as secondary
evidence. I do not see any merit in the contention that the
documents obtained under the Act of 2005 are either true copies or
attested copies. The definition aforesaid shows that the same are
certified copies. Even otherwise, it is interesting to note that in Black
Dictionary, the meaning of “certified copy” is as under : -
“Certified copy” - a copy of a document or record, signed or
certified as a true copy by the officer to whose custody original is
entrusted.”
Since the documents are covered under section 65 of the
Evidence Act, there was no need to compare the same with the
originals..
17. In view of the above analysis, the xerox copy certified by the
designated Public Information Officer under Right to Information Act of
the private documents are not certified copies within the meaning of
the provisions of Section 65 of the Evidence Act. They are merely true
copies of the private documents available in the records of the
particular Department. The production and marking of such copies is
permissible only after laying a foundation for acceptance of secondary
evidence under clauses (a)(b) or (c) of Section 65 of the Act. The
condition prescribed under the above cases (a), (b) or (c) of Section 65
of the Act have to be fulfilled before marking the true copies obtained
under the Right to Information Act. However, the true copies of public
documents certified by the designated Information Officer can be taken
as certified copies of the public documents.
18. Thus, in C.R.P. No. 3031 of 2015, since the documents sought to
be produced are true copies of the public documents those documents
can be treated as certified copies, whereas in C.R.P. No. 3048 of 2015,
the documents now sought to be produced are true copies of registered
sale deeds, they can be marked as secondary evidence, if the party
seeking to mark those documents fulfills the conditions prescribed
under Section 65(a) to (c) of the Act.
19. In view of the above, the C.R.P. No. 3031 of 2015 is dismissed
and C.R.P. No. 3048 of 2015 is disposed of with the above
observations. No costs.
———
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