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2008 DIGILAW 1605 (PNJ)

Ram Paul Goel Dead Through L. Rs. v. Pawan Kumar

2008-09-18

VINOD K.SHARMA

body2008
Judgment Vinod K.Sharma, J. 1. The petitioner has invoked the provisions of Article 227 of the Constitution of India to challenge an order passed by the learned Addl. Civil Judge (Sr. Divn.), Kurukshetra vide which application moved by the petitioner for leading secondary evidence to prove demarcation report has been ordered to be dismissed. 2. The plaintiff respondent filed a suit for possession with a consequential relief of permanent injunction. It was claimed by the defendant petitioner that demarcation of the suit land was effected by Hari Chand Kanungo, Sadar Thanesar as Local Commissioner, on 15.8.1989 and the report of the said date was prepared. It was claimed that the original file of demarcation report was not traceable in the record of V.R.K. Branch, Kurukshetra or in the office of Tehsildar Thanesar or in the office of Sadar Kanungo Thanesar. 3. It is the case of the petitioner that inquires were made about the file which was not traceable. It was claimed that the photo copy of the demarcation report was already on file, therefore, permission be granted to prove the same by leading secondary evidence. The petitioner sought to examine Rajbir Patwari son of Hari Chand Kanungo or any other person who was familiar with hand writing of Hari Chand Kanungo. 4. The application was opposed by the plaintiff- respondent and it was claimed that earlier also defendant filed an application for leading secondary evidence, which was dismissed. It was also claimed that present application was not competent as vide order dated 4.4.2006 last opportunity was granted to the petitioner to lead his entire evidence on 20.4.2006. The defendant petitioner led evidence on 20.4.2006 but did not close the evidence. The objection was also raised with regard to leading additional evidence to prove the photo copy in violation of Section 63 of Eviction Act. It was claimed that photo copy has been tampered with by the defendant with pen, which was admitted by Sadar Kanungo in his statement on oath before the Court. 5. It was also the stand of the plaintiff respondent that demarcation can be got done afresh by appointing a technical man to demarcate the suit property which is the main dispute between the parties as the dispute is with regard to the encroachment of portion of land which was owned by the plaintiff. 5. It was also the stand of the plaintiff respondent that demarcation can be got done afresh by appointing a technical man to demarcate the suit property which is the main dispute between the parties as the dispute is with regard to the encroachment of portion of land which was owned by the plaintiff. It was also claimed that Rajbir Patwari never conducted demarcation nor he was competent to carry out such demarcation. 6. It was the case of the petitioner that the loss of record is proved and, therefore, the petitioner be allowed to lead secondary evidence. The claim of the petitioner was contested on the plea that the photo copy of demarcation report cannot be proved by leading secondary evidence in view of Section 63 of the Evidence Act As the demarcation report was not attested copy of the original nor the witness by whom it is sought to be proved was present at the time of preparation of actual demarcation. It was asserted that afresh demarcation can be conducted. 7. The Court came to the conclusion that as the demarcation report is neither a certified copy nor its original record has ever seen the light of day, therefore, the petitioner cannot be permitted to prove this document by way of secondary evidence. 8. Mr. P.K. Gupta, learned counsel appearing on behalf of the petitioner vehemently contended that in the suit for possession filed by the plaintiff demarcation report is a valid document which was necessary to be proved. The contention of the learned counsel for the petitioner, therefore, was that the learned trial Court was in error in considering the veracity of the document at the time of considering the application to lead secondary evidence. 9. The learned counsel for the petitioner placed reliance on the judgment of this Court in the case of Bihari Lal v. Ram Piari, 1999(3) RCR(Civil) 239 (P&H) to contend that once loss of document was amply proved the application to lead secondary evidence should have been allowed. 10. The learned counsel for the petitioner also referred to the judgment of the Honble Supreme Court in the case of Benga Behera & Anr. 10. The learned counsel for the petitioner also referred to the judgment of the Honble Supreme Court in the case of Benga Behera & Anr. v. Braja Kishore Nanda & Ors., 2007(3) RCR(Civil) 240:2007(3) RAJ 242 (SC) to contend that when authenticity of the document was not in dispute then the Court ought to have allowed the application for leading the secondary evidence to prove the demarcation report. 11. The learned counsel for the petitioner there after referred to the judgment of this Court in the case of Mukhtiar Singh v. Bant Singh and another, 1991(1) RRR 86:1991(1) PLR 15 to contend that photo copy, which is placed on record, can be proved by way of secondary evidence. 12. The learned counsel for the petitioner also placed reliance on the judgment of the Honble Supreme Court in the case of Marwari Kumhar & Ors. v. Bhagwanpuri Guru Ganeshpuri & Anr., 2000(4) RCR(Civil) 279 (SC) to contend that the secondary evidence with regard to public document could be led when certified copy is lost. The ordinary copy of the judgment can be admitted in evidence. 13. The learned counsel for the petitioner thereafter placed reliance on 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 to contend that the Court cannot reject an application for leading secondary evidence by forming an opinion that the document sought to be proved was doubtful veracity. The said opinion could only be formed after the parties were allowed to lead evidence. 14. On consideration of the matter, I find no force in the contention raised by the learned counsel for the petitioner. The Honble Supreme Court in the case of J. Yashoda v. K. Shobha Rani, 2007(2) RCR(Civil) 840 : 2007(1) RCR(Rent) 466 : 2007(2) RAJ 607 : (2007)5 Supreme Court Cases 730, 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. 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. 8. Essentially, secondary evidence is an evidence which may be given in the absence of that better evidence which law requires to be given first, when a proper explanation of its absence is given. The definition in Section 63 is exhaustive as the Section declares that secondary evidence "means and includes" and then follow the five kinds of secondary evidence. 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, 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. 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 or 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. 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." 15. The judgment passed by the learned trial Court is in consonance with the law laid down by the Honble Supreme Court in the case of J. Yashoda v. K. Shobha Rani (supra). 16. It may be mentioned here that the learned counsel for the petitioner had also referred to the judgment of this Court in the case of Kuldip Kaur v. Chatter Singh and another, 2008(3) RCR(Civil) 463 to contend that the photo copy could be proved by way of additional evidence. However, it may be noticed that in the said case this Court distinguished the judgment passed by the Honble Supreme Court by observing that the Will sought to be proved was in possession of the petitioner and therefore, he had the occasion to make photocopy thereof. 17. In the present case the learned trial Court has rightly record that there is no proof of original being available on record nor the person to be examined to prove was the one who had prepared the photo copy or had seen the original demarcation report. 17. In the present case the learned trial Court has rightly record that there is no proof of original being available on record nor the person to be examined to prove was the one who had prepared the photo copy or had seen the original demarcation report. Thus, in view of the law laid down by the Honble Supreme Court the evidence sought to be produced by way of secondary evidence i.e. the photo copy of demarcation report was not admissible for want of compliance of Section 63 of the Evidence Act. 18. Even otherwise, the evidence sought to be produced is one with regard to the demarcation report and the learned trial Court was right in observing that fresh report could be prepared.