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2009 DIGILAW 1312 (HP)

S. J. v. N. LTD VS DOLMA

2009-12-18

DEEPAK GUPTA

body2009
JUDGMENT Deepak Gupta, J.(Oral)- A short question is involved in this case. The land of Dolma and Kaul Ram was acquired for the purpose of the Nathpa Jhakri Project. In this petition, we are only concerned with the super structure, i.e., house standing on the land. This super structure was jointly owned by Dolma and Kaul Ram. Not satisfied with the compensation awarded for the super structure by the Land Acquisition Collector, the claimants Sh.Kaul Ram and Smt.Dolma filed Reference Petition under Section 18 of the Land Acquisition Act which was referred to the learned District Judge, Kinnaur at Rampur. It appears that during these proceedings, Kaul Ram died. One minor Babli was brought on record as his legal representative. It was alleged that Smt.Dolma and Babli are the widow and daughter of Kaul Ram. 2. Smt.Dolma appeared in the witness box. During her statement, two documents, i.e. photocopy of an estimate Mark ‘A’ and photocopy of a plan, Mark ‘B’ were tendered in evidence which documents were prepared by M/s.Sharma and Associates, Architect and Engineers, Chandigarh. The learned District Judge held that since the documents had been marked, he can rely upon the same since they only corroborated the statement of Dolma. Relying upon these two documents, the award has been passed in favour of petitioners. This has given rise to the present appeal. 3. The main contention of Ms.Devyani Sharma appearing on behalf of the appellant is that the learned District Judge totally erred in placing reliance upon these documents. 4. I am constrained to observe that the learned District Judge totally ignored the elementary principles of law contained in the Evidence Act while relying upon these documents. These two documents were tendered by Smt.Dolma in her evidence. Mark ‘A’ consists of four sheets and purports to be an estimate of the construction of the existing house of Kaul Ram at Village Jhakri. It contains details which the claimant could not have been aware about such as the exact measurements. This report could have been proved only by the person who had prepared the same. The original documents were not placed on the record of the case. The learned District Judge totally erred in relying upon these documents since these were only photocopies of the original documents. 5. The law in this regard is very clear. This report could have been proved only by the person who had prepared the same. The original documents were not placed on the record of the case. The learned District Judge totally erred in relying upon these documents since these were only photocopies of the original documents. 5. The law in this regard is very clear. The then Hon’ble Chief Justice of this Court in National Insurance Company Vs. Nant Ram and others, 2005 (1) HLJ (HP) 153 held as follows:- “15. It is a cardinal, basic and established principle of evidence law that documents, other than public documents are tendered in evidence through witnesses who, after taking oath prove the documents appropriately as well as the contents of the documents, by way of leading direct evidence. Actually documents are produced and proved through witnesses and their contents also established and proved either by way of primary evidence or secondary evidence but in any event the established and accepted mode of proving documents is by production of witnesses in the court who testify about the correctness, genuineness and authenticity of the documents as well as their contents, mostly through the medium of proving them as and by way of, primary evidence and in certain given situations through the medium of secondary evidence. The purpose of course is two fold; firstly that such a witness appearing in the court is sworn and under oath testified about a particular document, its genuineness and authenticity as well as its correctness and secondly once under oath and examination this witness is subject to cross-examination by the opposite party so that the opposite party through the mechanism of cross-examination of such a witness can elicit appropriate information concerning the document itself with respect to its veracity, truthfulness background, correctness etc. etc. Enough indication of such requirement of law is found in Section 62 of the Evidence Act which refers to the documents as primary evidence and clearly suggests that such documents can be produced for the inspection of the court meaning thereby that through witnesses alone the documents have to be brought on record of the courts. etc. Enough indication of such requirement of law is found in Section 62 of the Evidence Act which refers to the documents as primary evidence and clearly suggests that such documents can be produced for the inspection of the court meaning thereby that through witnesses alone the documents have to be brought on record of the courts. Similarly under Section 63 of the Evidence Act, secondary evidence has been defined and reading together these two Sections, it can be safely said that documents, either by way of primary evidence or by way of secondary evidence or otherwise have to be appropriately and properly proved by their production in the courts through witnesses alone. 16. There is only one exception to the aforesaid rule of evidence law with respect to proof of documents and that exception relates only to the proof of public documents by production of certified copies of such documents, Section 74 of Indian Evidence Act defines public documents which include documents forming the acts or records of the acts of the sovereign Authority and of the official bodies and Tribunals and also include documents from Public Officers, Legislative, Judicial as well as Executive. Under Section 76 of the Evidence Act every Public Officer having the custody of a public document, which any person has a right to inspect has duty to give to such a person on demand a certified copy of such document. Under Section 77 of the Evidence Act, the certified copies of Public documents issued in the manner prescribed by Section 76 may be produced in proof of the contents of the public documents. The practice of allowing such documents to be brought on record by their mere production by a counsel and then even marking them as Exhibits is very unhealthy, very dangerous and the same is totally opposed to all principles of Evidence law.” 6. In view of the above preposition of law, it is apparent that no document can be read in evidence unless it is proved in accordance with law. The photocopies could not have been proved without the production of the original and the original documents can only be proved by the persons who have prepared the same, not by the claimants. Therefore, the award of the learned Reference Court is liable to be set aside on this short ground. 7. The photocopies could not have been proved without the production of the original and the original documents can only be proved by the persons who have prepared the same, not by the claimants. Therefore, the award of the learned Reference Court is liable to be set aside on this short ground. 7. Having said so, I feel that the claimants should not be made to suffer for fault of their counsel or the Court. They must be given an opportunity to prove these documents. It appears that these documents were got prepared by the claimants and, therefore, I feel that the interest of justice shall be served in case the matter is remanded back to the Reference Court who shall give an opportunity to the claimants to prove these documents in accordance with law. Needless to say that if the claimants are granted an opportunity to lead additional evidence the appellants will have a right to rebut the same. 8. During the course of this petition, an application was filed by Smt.Bhagti Devi for being impleaded as claimant on the ground that she is the daughter of Kaul Ram. This application was allowed on September, 22, 2005 and while allowing this application this Court held that whoever is held entitled to inherit the property of Kaul Ram, deceased by the Civil Court shall be entitled to receive the compensation amount. I have been told that the proceedings with regard to the inheritance of the estate of Kaul Ram are still pending. 9. Therefore, while remitting the case, I direct the learned District Judge not to release the amount falling to the share of Kaul Ram till the final adjudication of the civil proceedings. 10. The Registry is directed to ensure that the amount which is lying in this Court is remitted to the learned District Judge. The appeal is disposed of in the aforesaid terms. No order as to costs.