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2003 DIGILAW 475 (PNJ)

Ram Diya v. Brij Mohan

2003-03-31

NIRMAL SINGH

body2003
JUDGMENT Nirmal Singh, J. - This revision is directed against the order of Civil Judge (Junior Division), Karnal dated 11.9.2001 vide which the application of the plaintiff-respondent for leading secondary evidence has been allowed. 2. Plaintiff-respondent has pleaded that a compromise was effected between the parties which was submitted to A.S.I. Police Post, Taraori on 18.3.1995. The said Police Post has issued an attested copy of the compromise to the respondent. The respondent summoned the M.H.C., Police Post, Taraori along with the original compromise dated 18.3.1995 to prove the attested copy on the file but the MHC stated before the Court that the original compromise was not traceable. Thereafter, the petitioner-defendant filed an application for leading secondary evidence. Notice of the application was given to the petitioner and he raised the preliminary objection that the promise had been explained neither in the plaint nor in the replication. The execution of the alleged compromise was an afterthought. The MHC of the Police Station examined by the respondent did not prove the attested copy of alleged document. On merit, it was pleaded that no compromise was effected between the parties and the alleged copy of the compromise was a fictitious, frivolous and fabricated document. 3. After hearing the learned counsel for the parties and perusing the record, the learned trial Court allowed the application. Aggrieved by which, the present civil revision has been preferred. 4. The secondary evidence can only be allowed if the ingredients of Section 65 of the Indian Evidence Act, 1872 (hereinafter referred to as the Act) are fulfilled. Section 65 of the Act reads as under :- "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 document 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. (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 a public documents 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 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 is the general result of the whole collection. In case (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, is 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." 5. The impugned order allowing the secondary evidence is palpably erroneous. Plaintiff-respondent has not pleaded in the plaint or in the replication that the parties had effected a compromise on 18.3.1995 and it was presented in Police Post, Tarorari, which was attested by the ASI. Petitioner has not examined any witness to the said compromise. The M.H.C. examined by the respondent was neither a witness to the compromise nor he had attested it. Even the name of the ASI, Police Post, Tarorari has not been mentioned, to whom the alleged compromise was submitted. 6. Taking into consideration the facts and circumstances of the case that the plaintiff-respondent never pleaded in the plaint or in the replication that a compromise was executed between the parties on 18.3.1995, there was no occasion for the trial Court to have allowed the application of the plaintiff-respondent for leading the secondary evidence particularly when existence of the original document had not been proved. The witness summoned from the Police Post was neither the scribe of the alleged compromise nor the attested witness. When the original compromise was in existence to prove that it had been presented before some ASI in the Police Post, then a Daily Diary Report must have been recorded to that effect in the Police Post, but copy of the said D.D.R. has not been placed on the record. If the original document was not in existence at any stage, allowing the document that too on the basis of a photo copy cannot be in the interest of the opposite party. For the reasons recorded above, this civil revision is accepted and the impugned order dated 11.9.2001 is set aside and the application to adduce secondary evidence is dismissed. The parties are directed to appear before the trial Court on 21.4.2003. Revision allowed.