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2009 DIGILAW 764 (PNJ)

Gurjant Singh v. Charan Dass Teria

2009-04-21

A.N.JINDAL

body2009
JUDGMENT A.N. Jindal, J. - The defendant - petitioner has assailed the order dated 18.8.2007, whereby the Civil Judge (Sr.Divn.) Muktsar had allowed the application for leading secondary evidence of the agreement dated 28.5.2001 and a writing dated 4.6.2001, overleaf the agreement. 2. The plaintiff - respondent filed a suit for recovery for Rs. 5,74,800/- on the basis of the alleged agreement dated 28.5.2001 by setting up a plea that original agreement has been lost and he wants to prove both the aforesaid documents by way of secondary evidence. The Trial Court allowed the secondary evidence, subject to examining the evidentiary value of the same at the appropriate time. 3. Counsel for the petitioner has relied upon Gopal Singh v. Shish Pal and others, 2006(2) RCR(Civil) 79, wherein, this court observed as under :- "The question whether agreement dated 11.9.1992 was executed in respect of a residential plot is question of fact which can be determined only if opportunity is given to the parties to prove the execution of such document. Once, the existence, execution and loss of a document is proved, only then the plaintiff would be able to make out a case for admission of a document sought to be produced by way of secondary evidence. However, without any evidence having been led on the question of existence, execution and loss of the document, it would not be fair and reasonable to conclude that no such document was ever executed." The other judgment referred by the counsel is M/s Parkash Chand Kapoor Chand v. Inderjit Singh and others, 2006(3) RCR(Civil) 700, wherein, it was observed as under :- " ..The principle underlying the provisions of Section 65 of the Evidence Act is that the best evidence that is available should be produced. The original document is always the best and primary evidence. Section 65 provides an alternative method of proving the contents of a document which for various reasons cannot be produced. However, it is liable to be shown that the original document of which secondary evidence is sought to be produced was in existence. The original document is always the best and primary evidence. Section 65 provides an alternative method of proving the contents of a document which for various reasons cannot be produced. However, it is liable to be shown that the original document of which secondary evidence is sought to be produced was in existence. Besides, secondary evidence is admissible when it is shown that the primary evidence which is the original document was in existence." In another case Amt.Prem Lata v. Smt.Kamla Devi and others, 2006(3) RCR(Civil) 227, relied upon by the counsel for the petitioner, it was reiterated that the secondary evidence to prove a document can be allowed, if loss of the original is proved. In case Kartar Kaur v. General Public and others, 2003(3) PLR 50, it was observed that it is elementary principle of law that unless the existence of a document is proved, no secondary evidence could be permitted to be adduced as is laid down by Section 65 of the Indian Evidence Act, 1872. 4. The provisions of Section 65 were introduced in the Act to safeguard the rights of the parties who are likely to loose their rights for want of proof of the original document. No absolute right has been given to the effected party to lead secondary evidence, but in case of proof of loss or damage to the original document, the party could prove the same by way of secondary evidence. However, the only obligation before leading secondary evidence was to prove the existence of such document. 5. In the case in hand, the respondent (plaintiff) has already filed the photocopy of the agreement on the record. Perusal of the alleged agreement dated 28.5.2001 reveals that the petitioner admitted having received a sum of rupees four lacs and further the receipt dated 4.6.2001 overleaf the agreement shows that he had paid Rs. 50,000/- on that day. The writing also reveals that the petitioner acknowledged the executeon of the agreement dated 28.5.2001. 6. In any case, the crux of the decisions, relied upon by the counsel for the petitioner is that secondary evidence could be allowed, subject to proof of existence of its original and admissibility. 50,000/- on that day. The writing also reveals that the petitioner acknowledged the executeon of the agreement dated 28.5.2001. 6. In any case, the crux of the decisions, relied upon by the counsel for the petitioner is that secondary evidence could be allowed, subject to proof of existence of its original and admissibility. In any case, at this stage, mere fact that the respondent was in possession of the photocopy of the document, was sufficient to prove its existence, therefore, the application for secondary evidence could not be declined at this stage 7. No fault could be found with the impugned order, wherein, secondary evidence for the alleged agreement has been allowed, subject to all just exceptions, including existence of the original, mode of proof and its admissibility. No grounds to interfere. Dismissed.