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2012 DIGILAW 166 (CHH)

Vijay Chaudhary v. Devendra Kumar Nayak

2012-07-06

Prashant Kumar Mishra

body2012
ORDER 1. Petitioners are aggrieved by the order dated 31/03/2009 passed by the trial Court allowing plaintiff's prayer to lead secondary evidence under Section 65 of the Evidence Act. 2. Though the writ petition is belated, however, since learned counsel for the petitioner has explained that an earlier writ petition was preferred in 2011 which was dismissed as withdrawn with liberty to file afresh along with necessary documents and also for the reason that the subject document has not yet been exhibited, this Court has heard learned counsel for the petitioners on merits of the writ petition. 3. Plaintiff Devendra Kumar has filed a suit for declaration and permanent injunction. Plaintiff claims to have purchased the suit land from Laxmi Bai D/o Samund Rawat by registered sale-deed dated 15/06/1998. Defendant No. 1 Kailash Sharma purchased Khasra No. 5/1 from the said Laxmi Bai by registered sale-deed dated 08/07/2002 and thereafter the said defendant No.1 Kailash Sharma sold it to the present petitioners/ defendant No. 2 & 3 by registered sale-deed dated 15/10/2003. According to the plaintiff Khasra number of the land purchased by Kailash Sharma which in turn was sold to the present petitioners, has been fraudulently changed in the sale-deed which creates a cloud on his title. 4. One Ashok Yadav is the grand son of Laxmi Bai. He is in possession of the original Rin pustika in which lands owned and possessed by Laxmi Bai is recorded. When Ashok Yadav was summoned as plaintiff's witness he did not bring the original sale-deed in his possession which necessitated the plaintiff to prefer the application under Section 65 of the Evidence Act. 5. Learned counsel for the petitioner would submit that since Ashok Yadav is not the person against whom the document is sought to be proved or is legally bound to produce it and in spite of being noticed he has failed to produce the same, the mandate of Section 65 cannot be resorted to and the impugned order deserves to be set-aside. He relies on the judgment in the matter of Smt. J. Yashoda Vs. Smt. K. Shobha Rani AIR 2007 SC 1721 . 6. Section 65 (a) of the Evidence Act relevant for deciding the issue before this Court reads thus :- “S.65. He relies on the judgment in the matter of Smt. J. Yashoda Vs. Smt. K. Shobha Rani AIR 2007 SC 1721 . 6. Section 65 (a) of the Evidence Act relevant for deciding the issue before this Court reads thus :- “S.65. Cases in which secondary evidence relating to documents may be given Secondary evidence may be given of the existence, condition or contents of a document in the following cases :- (a) 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, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;" Admittedly witness Ashok Yadav is not a party in the civil suit, therefore he can only covered under the part 'of any person legally bound to produce it' as occurring in clause of Section 65 (supra). 7. In Sarkar's Evidence Act the following has been discussed quoting Wigmore. "As to document in the hands of a third person and its detention by him, the rules summarized by Wigmore afford a useful guide. He says: "(1) if the person within jurisdiction, possessing the document, is by reason of a privilege legally not compellable to produce it, this is clearly an excuse for non-production. (2) Where the third person is hostile and fraudulently detains the document, this fact is itself suffices to excuse non- production, though such an instance is perhaps often well disposed of by the doctrine of loss [vs 65 cl (c)] or of the opponent's possession by the hands of an agent. (3) Where neither of the above situations exists, and the case is an ordinary one of possession by a third person, it is clear that a request at least must have been made. The question a which a difference of opinion exists is whether the compulsory process of law should have been invoked by subpoena duces tecum. A number of courts seems to lay down fixed rule that a subpoena is necessary. The question a which a difference of opinion exists is whether the compulsory process of law should have been invoked by subpoena duces tecum. A number of courts seems to lay down fixed rule that a subpoena is necessary. The truth is that, while for the purpose general rule, it is better to require the process of subpoena, yet in the discretion of the trial Court the failure to use a subpoena, provided a request has been made, may not be treated as fatal, if in view of the nature of the document, the residence of the possessor and relations to the case, the risk of collusion and other circumstances, the service of a subpoena would have been an unnecessary effort. If the document is in court, a subpoena would of course be unnecessary. If after service of subpoena the possessor is recalcitrant refuses to obey, the proponent should be excused from production. (4) Where the desired witness possessing the document is himself also a party to the cause, on the side of proponent, his possession is of course no excuse for non-production" [Wig.s 1212] 8. In the impugned order it has been observed that the witness Ashok Yadav was served with a subpoena to appear in Court along with Rin Pustika however he appeared in the Court did not produce the original Rin Pustika and later on remained absent. It is in this condition the plaintiff moved an application under Section 65 of the Evidence Act for permission to lead secondary evidence. When the test summarized by Wigmore is considered for its application it can conceptualized that the said 3rd person namely Ashok Yadav may be colluding with the defendant and that he after service of subpoena is recalcitrant and has refused to obey the command of the Court for production of the original Rin Pustika and he may also be treated as an agent for the limited purpose inasmuch as he is hostile and fraudulently detaining the document. 9. It is to be seen that defendant No. 1 and thereafter defendant No. 2 & 3 are claiming title after purchasing the property from Laxmi Bat. 9. It is to be seen that defendant No. 1 and thereafter defendant No. 2 & 3 are claiming title after purchasing the property from Laxmi Bat. Plaintiff also claims to have purchased the property from Laxmi Bai, The title in the hands of defendant No. 1 and thereafter in the hands of defendant No. 2 & 3 vis-a-vis the title acquired by the plaintiff is the bone of contention between the parties, therefore even if Ashok Yadav is not a party to the suit, he being possessed of document i.e. original Rin Pustika wherein the correct khasra number is mentioned and with respect to which the entire controversy in the suit is revolving, the provision contained in Section 65 is attracted and the learned trial Court has not committed any error of law in allowing the plaintiff's prayer for leading secondary evidence. It is also important to notice that original owner Laxmi Bai is the predecessor in interest of defendants, therefore, Ashok Yadav can be treated as person legally bound to produce it and the trial Court has not acted without jurisdiction nor has passed the impugned order with illegality or material irregularity. 10. There is no substance in the petition, which fails and is hereby dismissed. Petition Dismissed.