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2007 DIGILAW 50 (PAT)

Bhola Prasad v. Nabi Rasul Mian

2007-01-08

RAMESH KUMAR DATTA

body2007
Judgment Ramesh Kr.Datta, J. 1. The petitioners have filed the civil revision application against the order dated 23.11.2000 passed by Sub-Judge-VI, Gopalganj in Title Suit No. 396/ 1993 (Nabi Rasul & Ors. vs. Bhola Prasad & Ors.), by which the court below has refused to mark a copy of a sale deed as exhibit in terms of Sections 63 and 65 of the Indian Evidence Act, 1872 . 2. The short facts relevant for the consideration of the present matter are that the petitioners who were the contesting defendants in the court below, had, during the course of hearing of the suit, filed a photocopy of a registered sale deed dated 29.3.1891 executed by wife and sons of the ex-owner of the disputed land which was marked as Ext. X for identification. During the course of hearing D.W. 11 Mantu Giri examined by the petitioners had stated that at the time of execution of the sale deed in favour of wives of the petitioners, a photocopy of the said registered sale deed dated 29.3.1891 was handed over by the vendor which was prepared through the process of photostat and was compared also from the original document in his presence. During the course of hearing summons were also served through the process of the Court on Moti Lal, Changi Lal and others, the vendors of the petitioners, for production of the said document, dated 29.3.1891 and the process server was also examined on behalf of the defendant-petitioners as D.W. 12 who proved the proper service on the said persons in whose possession the original of the said document was lying. Since the same was not produced, therefore, the petitioners filed an application on 17.11.2000 under Sections 63 and 65 of the Indian Evidence Act, 1872 for marking the photocopy of the said document dated 29.3.1891 as exhibit in the case mentioning the said facts about the calling of the document from the possession of the concerned persons which was not produced. It was further stated in the said application that the certified copy of the said document was not available in the Registry Office because the entire old documents were sealed by the order of the competent authority and accordingly, a request was made to mark the said document as exhibit in terms of Sections 63 and 65 of the Indian Evidence Act. 3. 3. The plaintiff-opposite parties filed a rejoinder to the said application mainly on the ground that the application was filed to linger the hearing of the suit and further that the alleged deed was not concerned with the land in dispute and was forged and manufactured document. 4. By the impugned order dated 23.11.2000 the application for marking the said document as exhibit was rejected for the reason that no cogent reason has been given by the petitioners for non-production of the original document or copy of the original document in the court. 5. Learned counsel for the petitioners submitted that since the original document was not in possession of the petitioners rather in the possession of their vendors who had given to them only the photocopy of the said original document which had been taken, after duly comparing the same with the original, hence they could not be faulted if even after notice sent through Court the persons in possession of the original document had failed to produce the same in Court. It was further submitted that the certified copy of the same has also not been issued by the Registry Office for the reasons stated above, and thus, they could also not be faulted for not producing the certified copy of the order. For the said reasons it was submitted by the learned counsel that in terms of the provisions of Sec. 65 of the Indian Evidence Act, the secondary evidence of the contents of the original document was admissible and the said photostat copy of the original document being a secondary evidence of the same in terms of the provisions of Sec. 63 (2) and (3) of the Act, it was definitely admissible. 6. In support of the aforesaid proposition learned counsel for the petitioners relies upon a decision of the Supreme Court in the case of Mst. Bibi Aisha and Others vs. The Bihar Subai Sunni Majlis Avaqaf and Others: AIR 1969 SC 253 , in which it was laid down as follows: "Under Sec. 65(a) of the Evidence Act secondary evidence may be given of the existence, or contents of a document 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, and when after the notice mentioned in Sec. 66, such person does not produce it. Where the case falls under Sec. 65(a) any secondary evidence of the contents of the document is admissible. In the present case the conditions of Sec. 65(a) were satisfied. The plain copy of the waqf was therefore admissible. On behalf of the appellant it was argued that CI. (f) of Sec. 65 was applicable and that as the certified copy of the deed dated August 20, 1827 was permitted by the Evidence Act to be given in evidence a certified copy alone was admissible in evidence. There is no substance in this contention. If the case falls under clause (a) any secondary evidence of the document is admissible, though the case may also fall under clause (f). Clause (a) is not controlled by clause (f). In the case of A Collision Between The Ava, (1879) ILR 5 Cal. 568, a question arose as to whether secondary evidence could be given of the contents of a certificate granted by the Board of Trade. The loss of the document attracted CI. (c) of Sec. 65 and the failure to produce if after notice attracted CI. (a). Clause (f) of Sec. 65 was also applicable. Wilson J. ruled that a certified copy need not be produced and any secondary evidence was admissible. We agree with this decision." Learned counsel for the petitioners also relies upon a decision of a Division Bench of this Court in the case of Chandreshwar Prasad Narain Singh vs. Bisheshwar Pratab Narain Singh : AIR 1927 Patna 61 in which it was laid down as follows: "Mr. Sultan Ahmad, on behalf of the respondents, contended that the rule as to the production of any secondary evidence does not apply to the case of a public document, in which case, a certified copy of the document but no other kind of secondary evidence, is admissible. If this argument be well founded, then it is obvious that the Legislature has made no provision for cases in which the original is a record of a Court of justice, and, therefore, a public document, which has also been lost or destroyed. In my opinion, the rule laid down in Sec. 65 that a certified copy is the only secondary evidence admissible when the original is a public document does not apply where the original has been lost or destroyed." 7. In my opinion, the rule laid down in Sec. 65 that a certified copy is the only secondary evidence admissible when the original is a public document does not apply where the original has been lost or destroyed." 7. Learned counsel for the opposite parties, on the other hand, contended that the document sought to be produced by the petitioners cannot be considered as a secondary evidence and has rightly been excluded by the court below by not permitting the same to be marked as exhibit. It is stated that in the absence of the original sale deed, a certified copy of the registered sale deed may be produced as secondary evidence and at the very least it was incumbent upon the petitioners to show by evidence that the said certified copy could not be produced. It was submitted that nothing has been brought on record to show that any official of the Registry Office was examined to prove the fact that the original register of 1891 was not available or lost and therefore, the certified copy could not be produced. Under the said circumstances, it is submitted that the application of the petitioners was rightly rejected by the court below. 8. In support of the aforesaid contention learned counsel for the opposite parties relies upon a decision of the Supreme Court in the case of Kalyan Singh vs. Smt. Chhoti and Others: AIR 1990 SC 396 , in para 25 of which it has been held as follows: "The High Court said, and in our opinion very rightly, that Ex. 3 could not be regarded as secondary evidence. Sec. 63 of the Evidence Act mentions five kinds of secondary evidence. Clauses (1), (2) and (3) refer to copies of documents: clause (4) refers to counter-parts of documents and clause (5) refers to oral accounts of the contents of documents. Correctness of certified copies referred to in clause (1) is presumed under Section 79: but that of other copies must be proved by proper evidence. A certified copy of a registered sale deed may be produced as secondary evidence in the absence of the original. But in the present case Ex. 3 is not a certified copy. It is just an ordinary copy. There is also no evidence regarding contents of the original sale deed. Ex. 3 cannot therefore, be considered as secondary evidence. A certified copy of a registered sale deed may be produced as secondary evidence in the absence of the original. But in the present case Ex. 3 is not a certified copy. It is just an ordinary copy. There is also no evidence regarding contents of the original sale deed. Ex. 3 cannot therefore, be considered as secondary evidence. The appellate Court has a right and duty to exclude such evidence." 9. On a consideration of the rival contentions of the parties. I find force in the submissions made by learned counsel for the petitioners. The law on this point as laid down in the decisions cited by the learned counsel for the petitioners and well settled propositions of law is that original of the registered sale deed must be produced and proved in Court as evidence by the parties who seeks to rely upon it. However, if the case satisfies any of the clauses (a) or (c) of Sec. 65 of the Act, then it is permissible for the party concerned to produce secondary evidence of the contents of the said original document. One of the conditions mentioned in Clause (a) is that when the original of the document in question is shown or appears to be in the possession or power of any person legally bound to produce it and when, after the notice mentioned in Sec. 66, such person does not produce it, then any secondary evidence of the existence, condition, or contents of the document is admissible. In Clause (c) of Sec. 65 also when the party offering evidence of the contents of a document cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time then secondary evidence may be given of the existence, condition or content of the said document. In a case of the present nature where the document produced is registered sale deed the case also gets covered by clause (f) of Sec. 65 under which when the original is a document of which a certified copy is permitted by the Evidence Act or any other law in force to be given in evidence, even a certified copy of the document, but no other kind of secondary evidence is admissible. 10. 10. In the aforesaid two cases, one of the Apex Court, and, the other of this Court, relied upon by the learned counsel for the petitioners, it has been clearly laid down that when a case is covered by either Clause (a) or Clause (c) of Sec. 65, then the provisions of Clause (f) do not cover or override the said provision but are subsidiary or supplementary to them. It has been clearly laid down that when a party who is in possession of the original document does not produce the same even after notice has been served upon him in accordance with the provisions of Sec. 66 of the Evidence Act then it is open to the party intending to rely upon the document to give secondary evidence of the existence, condition or contents of the document. It has been held by the said decisions that mere fact that certified copy of the said document could also be produced does not deprive the party of his right to give secondary evidence in respect of the said document in terms of the provisions of Clause (a) or (c) of the Act. It has further been laid down that the provision that in a case where a certified copy of the document can be produced, then no other kind of secondary evidence is admissible, will not apply to a situation which is covered by Clause (a) or (c), like in the present matter. 11. So far as the reliance by the learned counsel for the opposite parties on the case of Kalyan Singh (supra) is concerned, the same cannot be said to cover the present case. The clear finding of the Court was that the copy sought to be given in evidence was neither the certified copy given in any of the provisions of the Evidence Act nor was it a copy made by the original by any mechanical process and further it did not appear to have been made or compared from the original. Under those circumstances, it was held that it was not a document covered by the provisions of Sec. 63 of the Evidence Act and thus could not be considered secondary evidence of the contents of the original document. Under those circumstances, it was held that it was not a document covered by the provisions of Sec. 63 of the Evidence Act and thus could not be considered secondary evidence of the contents of the original document. It was only under those circumstances that the Supreme Court held that the said document had rightly been excluded from the evidence by the Court below and it was the right and duty of the court to do so. 12. In the present matter, clearly the copy sought to be produced has been stated by evidence led on behalf of the petitioners to be photostat copy made from the original which was in possession of their vendors and it is also stated that it had been compared from the original although in the case of a photocopy comparison may not strictly be required by law if it is shown by evidence that it is photocopy which is in fact made from the original by mechanical process, which thus shows the accuracy of the copy and is certainly covered by the definition of secondary evidence under Sec. 63 of the Act. Hence, if the original was not produced by the vendors even after due service of notice it was open to the petitioners to give secondary evidence regarding the existence, condition and contents of the document by producing the said photocopy. As clearly laid down by the Supreme Court, it is not at all obligatory under such a situation to produce a certified copy of the registered sale deed in the present matter. The case of the petitioners is that in fact they tried to obtain a certified copy but the same was not available in view of certain orders to seal all documents made by the competent authority of the Registry Office. 13. In view of the aforesaid facts and circumstances, the Civil Revision Application is allowed, the order dated 23.11.2000 passed by the learned Sub Judge-VI, Gopalganj in Title Suit No. 396 of 1993 is set aside and the court below is directed to accept the said document in evidence and mark it as exhibit.