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.
HYDERABAD HIGH COURT
Datti Kameswari Petitioner
Vs
Singam Rao Sarath Chandra and another Respondent
HONBLE SRI JUSTICE A. RAMALINGESWARA RAO
Civil Revision Petition Nos.3031 and 3048 of 2015
OrderDate: 11-12-2015
Citation;AIR 2016 Hyderabad 112
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:
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:
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
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.
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.
In the light of the above issue, it is not necessary for this
Court to go into the merits of the respective cases.
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.
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 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 1Where 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] 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
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.
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.
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 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.
In Rekha Rana and others 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?
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 certified copy of a public
document..
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)..
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, 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 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..
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)
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 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..
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.
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.
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.
___________________________
A.RAMALINGESWARA RAO, J
Date: 11-12-2015
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