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2008 DIGILAW 1379 (PNJ)

Enn Ess Electronics Jalandhar v. Harbans Kaur

2008-08-14

VINOD K.SHARMA

body2008
Judgment Vinod K.Sharma, J. 1. This order shall dispose of Civil Revision No. 1866 of 2008; Civil Revision No. 2152 of 2008 and Civil Revision No. 3502 of 2008, as common questions of law and facts are involved in all the petitions. 2. For convenience, facts are being taken from Civil Revision No. 1866 of 2008 titled M/s. Enn Ess Electronics Jalandhar & others v. Smt. Harbans Kaur & others. 3. The petitioners by invoking the jurisdiction of this Court under Article 227 of the Constitution of India have challenged the order dated 1.12.2007 passed by the learned Rent Controller dismissing an application moved by the petitioners for leading secondary evidence. The respondents landlord filed a petition under Section 13 of the Eat Punjab Urban Rent Restriction Act against the petitioners for ejectment of the shop, on the ground of arrears of rent, ceased to occupy. 4. It is the case of the petitioners that a detailed reply to the ejectment petition was filed wherein a stand was taken that a compromise/agreement was arrived at between the parties on 29.8.2001 and as per the said compromise three separate tenancies were created and that the petitioners were in possession of the demised premises in pursuance to the said compromise. 5. The factum of compromise/agreement was denied by the landlord and an application was moved on 6.3.2003 for production of the compromise deed/agreement. The petitioners denied the possession of the original agreement and claimed that the same was in possession of the landlord. The application moved by the landlord for production of said agreement was disposed of by passing the following order : "Heard on the application for production of documents. Ld. Counsel for the Respondent stated at bar that he is not in possession of original compromise deed. He was in possession of photocopy of the same, which is already placed on record. In view of the statement of the counsel for the respondent, the Application for production of documents stands disposed off. Perusal of the file shows that Application for the appointment of Local Commissioner is pending for disposal. For reply of this application the case is adjourned to 6.6.2003." 6. On February 19, 2004 when the landlord appeared as AW-2 Satinder Singh Chhabra produced compromise-cum-agreement dated 29.8.2001 for confronting him. Further cross-examination was deferred and the case was adjourned to 20.2.2004. Perusal of the file shows that Application for the appointment of Local Commissioner is pending for disposal. For reply of this application the case is adjourned to 6.6.2003." 6. On February 19, 2004 when the landlord appeared as AW-2 Satinder Singh Chhabra produced compromise-cum-agreement dated 29.8.2001 for confronting him. Further cross-examination was deferred and the case was adjourned to 20.2.2004. It is the case of the petitioners that on 19.2.2004, when one of the partners of the firm i.e. Satinder Pal Singh Chhabra was going on his scooter, the file containing carbon copy of the compromise deed was lost near the BMC Chowk Jalandhar and FIR/DDR was lodged with the Police Station Division No. 4 on the same day i.e. 19.2.2004. It is the case of the petitioners that the said compromise-cum-agreement was not admitted by the landlord and it was on account of that an application for leading secondary evidence to prove the Photostat copy of the compromise-cum-agreement was moved. 7. It is further the case of the petitioners that in another ejectment application provisional rent was assessed against which the petitioners preferred Civil Revision No. 1579 of 2005. The said petition was disposed of by this Court on 12.2.2007 and the said petition was dismissed. The copy of the order passed by this Court has been attached as Annexure P-9 with the present revision petition. The application moved by the petitioners for leading secondary evidence was dismissed by the learned Rent Controller. The said order has been impugned in this revision petition. 8. The application for secondary evidence filed by the petitioners was opposed by the respondents-landlord on the following grounds : 1. That no compromise/agreement was arrived at between the parties on 29.8.2001. 2. That the agreement allegedly arrived at between the parties on 29.8.2001 was insufficiently stamped and, therefore, was not admissible in evidence and, thus, permission for secondary evidence could not be granted. 3. That execution and loss of compromise/agreement dated 29.8.2001 is not proved on the file. It was also claimed that the agreement sought to be produced has been forged by the petitioners herein. 9. 3. That execution and loss of compromise/agreement dated 29.8.2001 is not proved on the file. It was also claimed that the agreement sought to be produced has been forged by the petitioners herein. 9. The stand taken by the petitioners before the learned Rent Controller was that notice of the application for producing the original agreement was given where a specific stand was that the original was handed over to the respondents-landlord but the same was not produced on record and, therefore, the tenant had right to lead secondary evidence. The application was opposed on the plea that no application was ever filed by the tenant-petitioner for production of alleged agreement/compromise. It was also claimed that the document was not covered within the definition of "secondary evidence" as the same is forged and fabricated document and, therefore, the same could not be permitted to be produced on record by way of secondary evidence. 10. The learned Rent Controller by referring to the zimni order dated 1.5.2003 came to the conclusion that the application moved by the respondents- landlord for production of document was disposed of when the statement was made by the learned counsel appearing on behalf of the petitioners herein that the original was not in possession of the petitioners. Thus, the learned Court came to the conclusion that the provisions of Section 65(a) of the Evidence Act were not complied with. 11. The learned trial Court also held that no notice as required under Section 66 of the Evidence Act prior to moving the application for secondary evidence was given to the respondent-landlord. 12. The learned Rent Controller further came to the conclusion that the petitioners herein had failed to allege that the copy produced on record is a copy of original or that the same has been compared with the original. 13. The learned trial Court further noticed that the petitioners have failed to explain as to under what circumstances photocopy was prepared and as to who was in possession of the original document at the time of preparation of the said copy. Thus, the Court came to the conclusion that no foundation had been laid by the petitioners for leading secondary evidence in the shape of photocopy. Thus, a finding was recorded that the document sought to be proved was not covered under the provisions of Section 63 of the Evidence Act. Thus, the Court came to the conclusion that no foundation had been laid by the petitioners for leading secondary evidence in the shape of photocopy. Thus, a finding was recorded that the document sought to be proved was not covered under the provisions of Section 63 of the Evidence Act. Thus, the learned trial Court came to the conclusion that the petitioners have failed to prove that any notice under Section 66 of the Act before seeking permission to lead secondary evidence was given and further that the document did not fall in any of the categories mentioned under Section 63 of the Evidence Act, therefore, the permission for leading secondary evidence could not be granted. 14. The learned counsel for the petitioners contended that the existence of the document was duly proved as in the written statement a specific stand was taken that the respondents are in possession of the compromise/agreement. 15. It was also the case of the petitioners that existence of compromise-cum- agreement Annexure P-3 stands proved from the fact that in terms of the said compromise a petition under Section 13 of the Act stood withdrawn. Similarly other suit filed for permanent injunction was also withdrawn. The reference was also made to the order passed by this court in revision wherein a stand was taken that the petitioner was to be in possession of the demised premises under the agreement/compromise deed. 16. On consideration of the matter, I find no force in the contention raised by the learned counsel for the petitioners. No explanation whatsoever is forthcoming as to why the carbon copy, which was alleged in possession of the petitioners was not placed on record along with the written statement, which is said to have been lost just a day before the same was to be put to the witness. The order Annexure P-10 vide which petition under Section 13 of the Act was withdrawn, also does not advance the case of the petitioners to prove that the existence of the document was admitted. The order passed by the Court reads as under : "Counsel for the petitioner has made statement that he does not want to pursue the present petition, as such, he withdraws the same. In view of the statement of the counsel for the petitioner, this petition is dismissed as withdrawn. File be consigned to the record room." 17. The order passed by the Court reads as under : "Counsel for the petitioner has made statement that he does not want to pursue the present petition, as such, he withdraws the same. In view of the statement of the counsel for the petitioner, this petition is dismissed as withdrawn. File be consigned to the record room." 17. The reading of the order would show that there is absolutely no mention of agreement/compromise between the parties. Similarly, order Annexure P-10/A on which strong reliance has been placed also does not advance the case. The order passed by the Court reads as under : "Counsel for the plaintiff has filed C.M. Application for withdrawal of suit. Statement of Sh. H.K.S. Bhatti, Adv. recorded. As such, case is dismissed as withdrawn. File be consigned to the record room." 18. The learned counsel for the petitioners has failed to place on record the civil miscellaneous moved for withdrawal of the suit which could throw some light on the compromise as it is claimed that the said suit was withdrawn in pursuance to the alleged compromise between the parties. The learned counsel for the petitioners was not even able to place on record the said application at the time of arguments. Similarly, the reliance on the order passed by this Court in revision is of no help to the petitioners as it was merely the contention of the petitioners that they were under the tenancy in pursuance to the said compromise/agreement. This Court did not accept the existence of the said compromise/agreement and merely observed that it is to be proved on record by the parties before the trial Court by leading cogent evidence. It may be mentioned here that the revision filed by the petitioners was dismissed by this Court. 19. The contention of the learned counsel for the petitioner that notice under Section 66 of the Evidence Act was given, also cannot be accepted. Section 66 of the Evidence Act reads as under : "66. Rules as to notice to produce. It may be mentioned here that the revision filed by the petitioners was dismissed by this Court. 19. The contention of the learned counsel for the petitioner that notice under Section 66 of the Evidence Act was given, also cannot be accepted. Section 66 of the Evidence Act reads as under : "66. Rules as to notice to produce. - Secondary evidence of the contents of the documents referred to in Section 65, clause (a), shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is or to his attorney or pleader, such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case : Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it : (1) when the document to be proved is itself a notice; (2) when, from the nature of the case, the adverse party must know that he will be required to produce it; (3) when it appears or is proved that the adverse party has obtained possession of the original by fraud or force; (4) when the adverse party or his agent has the original in Court; (5) when the adverse party or his agent has admitted the loss of the document; (6) when the person in possession of the document is out of reach of, or not subject to, the process of the Court. " 20. Thus, it is mandatory for a person, who seeks to lead secondary evidence, to give a notice calling upon the other party to produce the same in Court. In the present case admittedly no such notice was given. The contention of the learned counsel for the petitioners, in the present case, was that as no particular form of notice has been prescribed by law in that case it has to be such a notice as the Court considered reasonable under the circumstances of the case. 21. In the present case admittedly no such notice was given. The contention of the learned counsel for the petitioners, in the present case, was that as no particular form of notice has been prescribed by law in that case it has to be such a notice as the Court considered reasonable under the circumstances of the case. 21. The contention of the learned counsel, therefore, was that once a positive stand was taken that the respondents were in possession as tenant under the said compromise/agreement and further that notice was issued by the respondent-landlord for production of said document on record, has to be presumed to be notice as for production of the document. The contention of the learned counsel for the petitioners was that not only this at every stage of proceedings a specific stand with respect to the said document was taken for all intents and purposes, therefore, it has to be presumed that the respondent-landlord had the notice for production of the said document. 22. However, I am unable to agree to this contention raised by the learned counsel for the petitioners. Section 66 of the Evidence Act stipulated a positive act on the part of the party seeking to lead secondary evidence to issue a notice to the party in whose possession the said document is and thereafter an application can be moved for leading secondary evidence. No presumption of notice can be drawn as is sought to be contended by the learned counsel for the petitioner. Section 66 of the Evidence Act itself exempts certain documents from ambit of the notice for leading secondary evidence i.e. 1 to 6 reproduced above. The compromise/agreement, which petitioners seek to prove by way of secondary evidence, is not one of six documents referred to in Section 66 of the Evidence Act. Thus, no fault can be found with the findings recorded by the learned Rent Controller that the application for secondary evidence was not competent for want of notice under Section 66 of the Evidence Act. 23. The learned counsel for the petitioners also contended that the learned trial Court was in error in rejecting the application on the ground that the same was merely a photocopy and, therefore, not admissible in evidence. 23. The learned counsel for the petitioners also contended that the learned trial Court was in error in rejecting the application on the ground that the same was merely a photocopy and, therefore, not admissible in evidence. In support of this the learned counsel for the petitioners placed reliance on the judgment of the Honble Supreme Court in the case of Bharat Sewa Sansthan v. U.P. Electronics Corpn. Ltd., 2007(4) RCR(Civil) 98 : 2007(2) RCR(Rent) 315 : 2007(4) RAJ 697 : (2007)7 Supreme Court Cases 737 to contend that photo copies can be taken on record. He made reference to Paras 23 & 24 of the said judgment, which read as under : "23. The High Court in writ petition filed by the respondent Corporation against the order of the trial court, allowed the application of the respondent filed under Section 8(1) of the Arbitration Act. It was the specific case of the respondent Corporation before the High Court that the original agreements are in the possession of the appellant Sansthan, whereas the stand of the appellant Sansthan was that the original agreements are not in its possession. 24. The respondent Corporation placed on record of the trial court photocopies of the agreements along with an application under Section 8(1) of the Arbitration Act. The High Court, in our view, has rightly held that the photocopies of the lease agreements could be taken on record under section 8 of the Arbitration Act for ascertaining the existence of arbitration clause. Thus, the dispute raised by the appellant Sansthan against the respondent Corporation in terms of the arbitration clause contained in the lease agreement is arbitral." 24. However, I find no force in the contention as the question being considered in this case was not considered as there was no dispute with regard to the genuineness of document and the dispute was only whether photo copies of the agreement could be taken to ascertain the arbitration clause in the agreement. 25. The learned counsel for the petitioners also referred to the judgment of the Honble Supreme Court in the case of Nawab Singh v. Inderjit Kaur, 1999(2) RCR(Civil) 678 : 1999(1) RCR(Rent) 540 : (1999)4 Supreme Court Cases 413 to contend that the document sought to be produced cannot be rejected on the plea that the veracity of the said document was doubtful. The contention of the learned counsel for the petitioners was that it was only after the petitioners are allowed to lead secondary evidence, the Court could form an opinion whether the same was genuine or not, such finding could not be recorded at the stage of deciding the application for leading secondary evidence. 26. Mr. Roshan Lal Sharma, learned counsel appearing on behalf of the respondents contended that the order passed is just and fair and has been passed on well settled principle of law which does not call for any interference in exercise of reversional jurisdiction. The learned counsel for the respondents placed reliance on the judgment of the Honble Supreme Court in the case of Smt J. Yashoda v. Smt. K. Shobha Rani, 2007(2) RCR(Civil) 840 : 2007(1) RCR(Rent) 466 : 2007(2) RAJ 607 (SC) to contend that the photo copy of the document could not be received as secondary evidence. The Honble Supreme Court in the case of Smt. J. Yashoda v. Smt. K. Shobha Rani (supra) has been pleased to lay down as under : "3. Learned Single Judge held that the documents which were sought to be received and marked as secondary evidence are photo copies. It was noted that it may be a fact that the original of the documents are not available with the parties but at the same time the requirement of Section 63 of the Indian Evidence Act, 1872 (in short the Act) is that a document can be received as an evidence under the head of secondary evidence only when the copies made from or compared with the original are certified copies or such other documents as enumerated in the above section. The High Court found the photo copies can not be received as secondary evidence in terms of Section 63 of the Act and they ought not to have been received as secondary evidence. Since the documents in question were admittedly photo copies, there was no possibility of the documents being compared with the originals. Accordingly the Civil Revision was allowed. X X X X X 7. Secondary evidence, as a general rule is admissible only in the absence of primary evidence. If the original itself is found to be inadmissible through failure of the party, who files it to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contents. X X X X X 7. Secondary evidence, as a general rule is admissible only in the absence of primary evidence. If the original itself is found to be inadmissible through failure of the party, who files it to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contents. X X X X X 9. The rule which is the most universal, namely that the best evidence the nature of the case will admit shall be produced, decides this objection that rule only means that, so long as the higher or superior evidence is within your possession or may be reached by you shall give no inferior proof in relation to it. Section 65 deals with the proof of the contents of the documents tendered in evidence. In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. Under Section 64, documents are to be provided by primary evidence. Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said Section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the Section. In Ashok Dulichand v. Madahavlal Dube and Another, 1975(4) SCC 664, it was inter alia held as follows : "After hearing the learned counsel for the parties, we are of the opinion that the order of the High Court in this respect calls for no interference. According to clause (a) of Section 65 of Indian Evidence Act, Secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in 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 of any person legally bound to produce it, and when, after the notice mentioned in Section 66 such person does not produce it. Clauses (b) to (g) of Section 65 specify some other contingencies wherein secondary evidence relating to a document may be given, but we are not concerned with those clauses as it is the common case of the parties that the present case is not covered by those clauses. In order to bring his case within the purview of clause (a) of Section 65, the appellant filed applications on July 4, 1973, before respondent No. 1 was examined as a witness, praying that the said respondent be ordered to produce the original manuscript of which, according to the appellant, he had filed Photostat copy. Prayer was also made by the appellant that in case respondent No. 1 denied that the said manuscript had been written by him, the Photostat copy might be got examined from a handwriting expert. The appellant also filed affidavit in support of his applications. It was, however, nowhere stated in the affidavit that the original document of which the Photostat copy had been filed by the appellant was in the possession of Respondent No. 1. There was also no other material on the record to indicate the original document was in the possession of respondent No. 1. The appellant further failed to explain as to what were the circumstances under which the Photostat copy was prepared and who was in possession of the original document at the time its photograph was taken. Respondent No. 1 in his affidavit denied being in possession appeared to the High Court to be not above suspicion. In view of all the circumstances, the High Court to be not above suspicion. In view of all the circumstances, the High Court came to the conclusion that no foundation had been laid by the appellant for leading secondary evidence in the shape of the Photostat copy. We find no infirmity in the above order of the High Court as might justify interference by this Court." 27. On consideration of matter I find no force in the contention raised by the learned counsel for the petitioners. As already observed, the petitioners failed to prove the existence of the original agreement/compromise. It is also proved on record that no notice under Section 66 of the Evidence Act was given for production of the original, though, it was claimed that the same was in possession of the respondent landlord. 28. As already observed, the petitioners failed to prove the existence of the original agreement/compromise. It is also proved on record that no notice under Section 66 of the Evidence Act was given for production of the original, though, it was claimed that the same was in possession of the respondent landlord. 28. The contention of the learned counsel for the petitioners that presumption of notice by knowledge can be drawn, is not acceptable. It may also be noticed here that in the present case as per the case set up the petitioners had failed to prove on record to indicate as to under what circumstances the photo copy was prepared and who was in possession of the original document at the time of preparation of the photocopy. Rather it is positive case set up by the petitioners that at no stage the petitioners were in possession of the original, from where the said photocopy could be said to have been prepared or compared so as to make out a case for producing the same by way of secondary evidence. The judgment passed by the learned Rent Controller, therefore, is in consonance with the law laid down by the Honble Supreme Court in the case of Smt. J. Yshoda v. Smt. K. Shobha Rani (supra). For the reasons stated above, there is no merit in the present revision petition, thus, accordingly dismissed. Petition dismissed.