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IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
MONDAY, THE 1ST DAY OF JULY 2024 / 10TH ASHADHA, 1946
OP(C) NO. 75 OF 2018
AGAINST THE ORDER/JUDGMENT DATED IN OS NO.545 OF 1998 OF
II ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM

PETITIONERS:

1 N.DIVAKARAN
SON OF LATE NARAYANAN,
SUBEDAR IN THE INDIAN ARMY
WHO IS NOW STATIONED IN MUMBAI AND
HAVING PERMANENT RESIDENCE AT
TC 16/2902,TAGORE GARDENS,
MEDICAL COLLEGE P.O.,
THIRUVANANTHAPURAM PIN:695 011.

2 MRS L. CHANDRIKA
WIFE OF DIVAKARAN,RESIDING AT TC 16/2902,
TAGORE GARDENS,MEDICAL COLLEGE P.O.,
THIRUVANANTHAPURAM PIN:695 011.

BY ADVS.
SRI.V.SURESH
SMT.N.P.ASHA
SRI.G.SUDHEER

RESPONDENTS:

1 DAVID LIVINGSTON
ROHINI BUILDINGS, PATTOM,
THIRUVANANTHAPURAM PIN 695 012.(DIED)
2 SUMATHI BAI
W/O LATE DAVID LIVINGSTONE
AN 22 SHEELA COTTAGE, ARADHANA NAGAR,
MARUTHOOR MANNANTHALA P O
TRIVANDRUM PIN 695015
3 SHEELA
D/O LATE DAVID LIVINGSTONE
AN 22 SHEELA COTTAGE, ARADHANA NAGAR,
MARUTHOOR MANNANTHALA P O
TRIVANDRUM PIN 695015
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4 RAMLA
D/O LATE DAVID LIVINGSTONE
AN 22 SHEELA COTTAGE, ARADHANA NAGAR,
MARUTHOOR MANNANTHALA P O
TRIVANDRUM PIN 695015
5 KALA
D/O LATE DAVID LIVINGSTONE
AN 22 SHEELA COTTAGE, ARADHANA NAGAR,
MARUTHOOR MANNANTHALA P O
TRIVANDRUM PIN 695015
6 BEELA
D/O LATE DAVID LIVINGSTONE
AN 22 SHEELA COTTAGE, ARADHANA NAGAR,
MARUTHOOR MANNANTHALA P O
TRIVANDRUM PIN 695015

(ADDL.RESPONDENTS 2 TO 6 ARE IMPLEADED VIDE ORDER

DATED 06/01/2021 IN IA.NO 1/2020 AS THE LR'S OF
DECEASED SOLE RESPONDENT)

BY ADVS.
SMT.J.HARIPRIYA
K.B.PRADEEP
GOPIKRISHNAN NAMBIAR M
K.JOHN MATHAI(K/413/1984)
JOSON MANAVALAN(J-526)
KURYAN THOMAS(K/131/2003)
PAULOSE C. ABRAHAM(MAH/58/2006)
RAJA KANNAN(K/356/2008)
R.CHETHAN KRISHNA(K/646/2013)

THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON

01.07.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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“C.R.”
JUDGMENT

Ext.P4 order passed by the Additional Munsiff Court-II,

Thiruvananthapuram (for short, 'the trial court') is under challenge in this

original petition.

2. The petitioners herein are the plaintiffs, and the 1st respondent

herein is the defendant in O.S.No.545/1998 on the file of the trial court. The

suit was one for declaration of title and recovery of possession. The plaintiffs

claim that the plaint schedule property belongs to them and is in their

possession. In the written statement and the additional written statement, the

defendants raised rival title and possession over the plaint schedule property.

It was contended that, he purchased a larger extent of property from persons

who had been allotted plots as per the final decree in a suit for partition; that

he obtained possession over the property in execution of that final decree by

delivery through court and that the plaint schedule property was a part of the

property delivered over to him in execution of the decree.

3. The parties went on trial. After the oral evidence on the side of

the plaintiffs was over, the defendant was examined on commission as DW1.

He filed proof-affidavit in lieu of chief- examination before the commissioner

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and marked Exts.B1 to B14. The counsel for the plaintiffs objected to the

marking of the documents tendered as Exts.B2, B8, B9 and B10. The

objections were recorded by the commissioner, and they were reserved to be

decided by the court at the stage of hearing as contemplated under the proviso

to Rule 4 of Order XVIII of CPC. It is evident from Ext.P3 testimony of

DW1.

4. Ext.B2 is a delivery kychit given by Amin in the execution of the

final decree mentioned above. Exts.B8 to B10 are the photostat copies of the

land revenue receipts in respect of the plaint schedule property. The plaintiffs

objected to the marking of Ext.B2 on the ground that it is a report submitted

by an Amin to the court in another suit in which they were not parties, and it

cannot be proved without examining the author of that document. To be

precise, the objection was to the mode of proof of Ext.B2. The objection to

the marking of Exts.B8, B9 and B10 was that the documents are photocopies

and cannot be admitted in evidence at all. The objection was to the

admissibility of the documents. The trial court heard both sides as to the

objections raised by the plaintiffs over Exts.B2, B8, B9 and B10. Thereafter,

it passed Ext.P4 order accepting the objection made by the plaintiffs against

Exts. B8 to B10 and over-ruling the objection against Ext.B2. It is challenging

the said order; this original petition has been preferred.

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5. The 1st respondent died during the pendency of this Original

Petition. The additional respondents 2 to 6 were impleaded as his legal heirs.

6. I have heard Sri.V.Suresh, the learned counsel appearing for the

petitioners and Sri.M.Gopikrishnan Nambiar, the learned counsel appearing

for the respondents.

7. The learned counsel for the petitioner submitted that the trial

court passed Ext.P4 order as if deciding the entire suit and failed to

comprehend the scope of the question that arose before it at that stage. The

learned counsel further submitted that the facts stated in Ext.B2 document or

the truth of contents therein cannot be proved by mere production of certified

copy of the said document without the author being examined. The objection

under the proviso to Rule 4 of Order XVIII of CPC regarding the proof and

admissibility of the objected document can be taken up for consideration by

the court only after the evidence is completed, submitted the counsel. Per

contra, the learned counsel for the respondents supported the findings in the

impugned order. It was urged that Ext. B2 being the certified copy of a public

document, the Court was obliged to consider the truth of the contents thereof

as being prima facie established. Reliance was placed on Appaiya v.

Andimuthu alias Thangapandi and others (AIR 2023 SC 4810)

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8. The trial court extensively dealt with the relevancy, admissibility,

mode of proof and even evidentiary value of Ext.B2. Ultimately, it was held

that the contents in Ext.B2 document can be accepted in proving the

possession of the defendant with respect to the property covered by the said

document without examining Amin, who prepared the same. At the outset, I

must say that it was too premature for the trial Court to arrive at such a

finding at the stage of considering the objection raised by the counsel for the

plaintiffs regarding the admissibility of Ext.B2 as provided under the proviso

to Order XVIII Rule 4(1) of CPC. Ideally, such an objection could be taken up

for consideration by the court only after the evidence is completed.

9. The trial court was of the view that, since Ext.B2 is a certified

copy of a public document, the contents stated therein stand automatically

proved by mere production of the same. The learned counsel for the defendant

also made submissions in the same line before me.

10. Under the Law of Evidence, it is necessary that the contents of

the documents are required to be proved either by primary or secondary

evidence. Chapter V of the Evidence Act deals with documentary evidence.

Section 61 thereof lays down that the contents of documents may be proved

either by primary or secondary evidence. As per Section 62, primary

evidence means the documents itself produced for the inspection of the court.
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Section 63 categorized five kinds of secondary evidence. Section 64 lays

down that documents must be proved by primary evidence except in the cases

mentioned in the following Sections. To put it briefly, the general rule is that

secondary evidence is not admissible until the non - production of primary

evidence is satisfactorily proved. However, Clauses (e) and (f) of Section 65

carves out an exception to the extent that when the original document is a

public document or when the original is a document of which a certified copy

is permitted by the Evidence Act, or by any other law in force in India, to be

given in evidence, secondary evidence is admissible even though the original

document is still in existence and available. Section 74 of the Act defines

what ‘public documents’ are. Section 76 of the Act deals with the issuance of

certified copies of public documents, Section 77 deals with the proof of public

documents by production of certified copies and Section 79 deals with

presumption as to the genuineness of certified copies.

11. Sections 61 and 62 of the Evidence Act, when read together,

show that the contents of a document must primarily be proved by the

production of the document itself for the inspection of the Court. The Act

requires, first, the production of the original document. If the original

document is not available, secondary evidence can be given. Under Section

65 (e), secondary evidence may be given when the original is a public

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document within the meaning of Section 74 and only a certified copy of the

public document is admissible. Section 77 provides that certified copies may

be produced in proof of the contents of the public documents. Thus, the

contents of a document, be it private or public, may be proved by the

production of primary or secondary evidence, as the case may be, for the

inspection of the court. A conjoint reading of the relevant provisions of the

Evidence Act clearly shows that the only difference that the Act made

between public and private documents was in regard to the form of secondary

evidence which is admissible, viz., a certified copy, and in regard to the

presumption of the genuineness of the certified copy; in all other respects, no

distinction was drawn by the Act between public and private documents (Om

Prakash Berlia and Another v. Unit Trust of India and Others, AIR 1983

Bom. 1)

12. Section 61 speaks of proof of contents of documents, both

private and public, by primary or secondary evidence. Section 77 speaks of

proof of contents of the public documents by production of certified copies.

There is a difference between ‘proof of contents of a document’ and ‘proof of

the truth of the contents of a document’. The expression ‘contents of

documents’ is not defined in the Evidence Act. ‘Document’, as per Section 3

thereof, means any matter expressed or described upon any substance by

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means of letters, figures or marks, or by more than one of those means,

intended to be used, or which may be used, for the purpose of recording that

matter. As per the illustrations, a writing is a document; words printed,

lithographed or photographed are documents; a map or plan is a document; an

inscription on a metal plate or stone is a document; a caricature is a document,

etc. A document may, thus, contain several ‘things’, such as writing, figures,

marks, print, inscription, etc. It may also contain various other things than

mere writing. ‘Fact’, as per Section 3 of the Evidence Act, means and

includes any ‘thing’ which is capable of being perceived by the senses. That a

man said certain words is a fact; that a man heard or saw something is a fact;

that a person did something is also a fact since all such things can be

perceived by the senses. Section 59 of the Evidence Act lays down how a

‘fact’ can be proved. It says that all facts, except the contents of documents or

electronic records, may be proved by oral evidence. Therefore, all the things

as may be contained in the ‘document’, as defined under S.3, constitute

‘contents of a document’. That a document contains a particular writing; that

it contains a typewritten matter or a particular handwriting, a writing in ink,

an erasure, interpolation, painting, fold, etc., constitute ‘contents of

documents.’ If, on perusal or inspection of a document, it is found to contain

a writing, figures, marks, print, inscription, signature, painting and date, those
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things are its contents because all those things contained in the document are

visible on an inspection of the document by the Court. However, if a ‘fact’

which falls under Section 3 is written in a document, such ‘fact’ incorporated

in the document can be treated only as a 'statement of fact' relating to such

‘fact’. Such a 'statement of fact' may be treated as one of the ‘contents of the

document’, but the ‘fact’ written in the document as such will not constitute

‘contents of the document. This is for the reason that on an inspection of the

document by the Court, the Court can only see that the document contains a

'statement of fact' referring to a ‘fact’ but, it cannot see or perceive by any

sense, truth or existence of the said ‘fact’ written in the document. Thus, there

is a clear distinction between the ‘contents of documents’ and the ‘facts’

stated in the document or the truth of the contents of the document. (Suresh v.

Tobin, 2013 (1) KLT 293).

13. The expression ‘contents of document’ in Sections 61 and 77

must only mean what the document states and not the truth of what the

document states. The ‘facts’ stated in the contents of the document or truth of

the contents of the document will not stand proved by the mere production of

the document for the inspection of the court. Where the party tendering the

document finds it necessary to prove the truth of its contents, that is, the truth

of what it states, he must do so in the manner he would prove a relevant fact.

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By virtue of S.59 of the Evidence Act, such facts have to be proved by oral

evidence of the person who can vouch for the truth of the facts. This is

generally done by calling the author of the document (Bishwanath Rai v.

Sachhidanand Singh, AIR 1971 SC 1949). If such direct oral evidence is

adduced to prove such fact, any 'statement of facts' contained in a document

relating to such fact can be relied upon to corroborate or contradict such oral

evidence, as a former statement. But, in the absence of oral evidence, the

mere production of a document which contains a narration of a past event will

not suffice to prove the facts stated therein, in the light of Section 59 read

with Section 61 and Section 62 of the Evidence Act. Of course, if no direct

oral evidence is available to prove a fact, circumstantial evidence can be

adduced. Such circumstances sought to be proved may also constitute ‘facts’

as defined in Section 3, and such facts have to be proved by oral evidence, as

per Section 59 of the Evidence Act [Suresh (supra)].

14. The production of certified copies under the provisions of

Section 63 is a means of leading secondary evidence. Secondary evidence

can, obviously, be led only of what the document states, not as to whether

what the document states is true. Under Section 65 (e), secondary evidence

may be given when the original is a public document within the meaning of

Section 74 and only a certified copy of the public document is admissible.

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Secondary evidence of a public document so led only proves what the

document states, no more. In other words, he who seeks to prove a public

document is relieved of the obligation to produce the original. He can produce

instead a certified copy. All other requirements he must still comply with.

[Om Prakash Berlia (supra)]. All that a certified copy does is that it

authenticates the genuineness of the copy. The Court presumes that the

original document had the same contents as the copy. It certainly does not

prove the disputed facts or the truth of the contents of the document.

15. Let me now turn to the decision cited by the learned counsel for

the respondent. In Appaiya (supra), the Supreme Court recently held that a

certified copy of a sale deed, being a public document, would be admissible in

evidence for proving the contents of the original document. That was a case

where the High Court took the view that a certified copy was inadmissible in

evidence owing to failure to produce the original. Referring to various

provisions of the Evidence Act and the Registration Act, the Supreme Court

reversed the said finding of the High Court and held that a certified copy of a

public document is admissible in evidence for the purpose of proving the

contents of its original document. The Supreme Court observed that the

document in question, being a certified copy of a public document, need not

have been proved by calling a witness. No question arose before the Supreme
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Court whether the truth of the contents of a public document would stand

proved by mere production of the certified copy.

16. Although secondary evidence is admissible of a public document

by way of its certified copy, the party who produced it is not relieved of his

obligation to prove the facts stated therein or the truth of its contents. A

certified copy of a public document can be admitted as secondary evidence to

prove only what the document states. The truth of what the document states

must be separately established. There is no presumption that all facts stated in

a public document are true or that they exist. If the existence or truth of the

facts stated in a document, public or private, is disputed, it is to be proved by

the oral evidence of the person who has perceived those facts by senses and

who can vouch for the truth of those facts. Truth or existence of facts stated in

the document cannot be proved by mere production or marking of the

document, especially if such facts are disputed and are in issue. Even if a

person admits the execution of a document, he can still dispute the correctness

of its contents, or the truth of the facts stated therein. Mere admission of the

execution of a document may prove that such a document is executed, but that

will not further prove that the facts stated therein are true. It shall not be legal

for the court to rely solely upon the recitals in the document as substantive

evidence to decide whether disputed facts exist, proved or not. It is well

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settled that neither the mere admission of a document in evidence amounts to

its proof nor the mere marking of a document as exhibit dispenses with its

proof, which is otherwise required to be done in accordance with law. [Life

Insurance Corporation of India and Another v. Ram Pal Singh Bisen

(2010) 4 SCC 491].

17. The definite case of the plaintiffs is that Ext.B2 document relates

to a suit in which they were not parties and thus not binding on them. The

contents in Ext.B2 are not at all admitted by the plaintiffs. The plaintiffs were

not parties to Ext.B2 proceedings. Thus, the disputed facts that exist in

Ext.B2 cannot be proved by the mere production of the said document. By

mere production of Ext. B2 document, all that may be proved is that the

document contains a ‘statement of fact’ that delivery was effected, but

whether such delivery was actually made or not will not be proved by such

production or marking. When the facts stated in a document or the truth of

contents in a document are disputed, they must be proved by examining the

person who issued that document. The fact that there was actual delivery of

possession has to be proved by oral evidence, going by Section 3 and Section

59 read with Section 61 and Section 62 of the Evidence Act. Hence, the

finding of the trial court in the impugned order that the contents of Ext.B2 can

be considered by the court in proving the possession of the defendant with

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respect to the property delivered through Ext.B2 kychit cannot be sustained.

Accordingly, the said finding is set aside. The proof of Ext.B2 document shall

be independently considered by the trial court along with other evidence on

record after the evidence is completed.

The original petition is disposed of as above.

Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
APA
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APPENDIX OF OP(C) 75/2018

PETITIONER EXHIBITS

EXHIBIT P1: TRUE COPY OF THE AMENDED PLAINT

O.S.NO.545/1998 FILED BY THE PETITIONER
BEFORE THE HONOURABLE MUNSIFF
COURT,THIRUVANANTHAPURAM.
EXHIBIT P2: TRUE COPY OF THE WRITTEN STATEMENT FILED BY
RESPONDENT IN O.S.NO.545/1998 BEFORE THE
MUNSIFF COURT, THIRUVANANTHAPURAM.
EXHIBIT P2(a): TRUE COPY OF THE ADDITIONAL WRITTEN STATEMENT
FILED BY RESPONDENT IN O.S.NO.545/1998 BEFORE
THE MUNSIFF COURT, THIRUVANANTHAPURAM.
EXHIBIT P3: TRUE COPY OF THE TESTIMONY OF THE DEFENDANT
AS DW1 ON 29.10.2009.
EXHIBIT P4: TRUE COPY OF THE ORDER IN OS 545/1998 DATED
06.12.2017 OF THE ADDITIONAL MUNSIFF-11
THIRUVANANTHAPURAM.