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2001 DIGILAW 212 (JK)

Fayaz Ahmad Sultanpuri S/o Habib Joo Sultanpuri R/o Mohalla Mumkak, Sopore v. J&K Bank Ltd.

2001-09-17

MUZAFFAR JAN

body2001
JUDGEMENT 1. Revision petition has been filed to set aside the order dated 21.7.2000, passed by Second Civil Sub-ordinate Judge (Passenger tax) in civil suit titled Fayaz Ahmad Sultanpuri versus Jammu & Kashmir Bank Ltd. and others. 2. It appears that the petitioner filed suit for declaration and injunction in the court of District Judge, Srinagar, which came to be transferred to the court of Second Civil Subordinate Judge for trial. Petitioner in the suit prayed for declaratory decree that the selection of defendants 5 to 16 be declared illegal with further relief of mandatory injunction that no appointment orders be issued to defendants 5 to 16 and the plaintiff/petitioner be appointed as Manager Law in view of better merit, suitability and experience etc. 3. The defendant/present respondents appeared and resisted the plaintiff's suit on all grounds and consequently ten issues were raised and the plaintiff-petitioner was directed to produce evidence vide order dated 27-6-1991. During the course of leading evidence, an application seeking permission for leading secondary evidence was filed before the trial court on 6-8-1996. The trial court after hearing the parties on this application came to the conclusion that the document which is requested to be proved by secondary evidence is a photocopy of some experience certificate, without a legal source and as such could not be taken in evidence, rejected the application vide order dated 21-7-2000. It is the validity of this order which has been challenged in the present revision petition. 4. Heard the learned counsel for the parties at length. 5. From perusal of the record of the trial court, it appears that the plaintiff-petitioner at the initiation of the suit on 6-7-1998 did not submit this certificate which is now prayed to be proved by secondary evidence although it was mandatory under Order 7 Rule 14 CPC for the petitioner to produce all documents on which he relied alongwith his plaint in the years 1988. Petitioner did not make any effect to make a motion before the issues were raised in the year 1991 to bring the fact of loss of the certificate on file. 6. Petitioner did not make any effect to make a motion before the issues were raised in the year 1991 to bring the fact of loss of the certificate on file. 6. Learned counsel for plaintiff has argued that the experience certificate, which is a vital and important document, has been lost and is not in his possession, but since the document is the basis to prove his claim, therefore, permission to prove the contents of the document by leading secondary evidence should have been given by the trial court. Trial court did not appreciate the controversy and without application of mind refused permission vide order dated 21-7-2000, which has been passed on improper exercise of jurisdiction and is bound to cause failure of justice. 7. The submission advanced by the learned counsel for petitioner though appear to be innocent and impressive, cannot be allowed for multiple reasons in the facts and circumstances of the present case. Had the petitioner been serious to base his claim on experience certificate, which according to the petitioner is lost, the petitioner would have submitted motion seeking permission for secondary evidence at the earliest stage in 1991 when the issues were raised in the trial court. Moreover the grounds taken in the application appear to be vague and of general nature. The petitioner has not explained how he lost the original certificate and the date on which the certificate was lost. The relevant portion of the application is reproduced reads as under: "1. That the plaintiff-petitioner is saddle to prove the issuance of the experience certificate issued by Chief Judicial Magistrate, Sopore; 2. That the plaintiff-petitioner has lost the original experience certificate and is hence unable to produce the same. 3. That the present petition merits acceptance because of the fact that the photostat copy of the relevant certificate is already placed on the records of the court which lends support to bonafides of the plaintiff-petitioner....." 8. From the perusal of para-1 of this application, it is manifestly clear that the experience certificate, was issued by the Chief Judicial Magistrate, Sopore. In these circumstances the experience certificate becomes a public document. From the perusal of para-1 of this application, it is manifestly clear that the experience certificate, was issued by the Chief Judicial Magistrate, Sopore. In these circumstances the experience certificate becomes a public document. If the learned Chief Judicial Magistrate issued the experience certificate on the basis of official record, the petitioner could apply and get a certified copy of his experience certificate and submit it at the time of institution of the suit or on a subsequent date before the raising of issues. In case, the petitioner failed to get the certified copy of the experience certificate, he is under law bound to show that the basis on which the experience certificate was issued by the learned Chief Judicial Magistrate, Sopore has been lost or destroyed. It is settled position of law that secondary evidence of public documents can be permitted only when both the original and the certified copy is proved to have been lost or destroyed. This view has been taken by the Apex Court in AIR 2000 SC 2629. 9. It is the basis for granting permission to lead secondary evidence that the document must be above suspicion, authentic and from a legal source, and the document must be relevant to the controversy in which it is intended to be produced. 10. In the case in hand experience certificate issued by the Chief Judicial Magistrate, Sopore without any official record and without any authorisation of law, projected to have been lost in mysterious circumstances, does not justify the request to grant permission to prove the said certificate by secondary evidence. The impugned order of the trial court in these circumstances appear to have been passed on proper exercise of jurisdiction without any error and perfectly in accordance with law. 11. With these observations, the order impugned of the trial court is upheld and the revision petition is dismissed. Record of the courts below be sent back.