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2015 DIGILAW 1415 (JHR)

Khetro Mohan Tudu v. Sona Ram Manjhi

2015-11-05

SHREE CHANDRASHEKHAR

body2015
JUDGMENT : Shree Chandrashekhar, J. Aggrieved by order dated 02.07.2015 in Title Suit No. 125 of 2013, the present writ petition has been filed. 2. The petitioner is the plaintiff in Title Suit No. 125 of 2013. The suit was instituted for declaring the registered reconstituted Deed of Trust vide Schedule-C as null & void and inoperative and it does not create endowment in favour of defendant nos.1 to 7 and for a declaration that the defendants have not acquired any right, title and interest over the Schedule-A property by virtue of the said Deed of Trust. Prayer for an interim injunction and an order staying operation of the account vide Schedule-D have also been made in the suit. The plaint was presented on 17.12.2013 and in the pending suit application dated 19.03.2015 was filed seeking a direction upon the defendants to produce the original minutes register containing resolutions from 21.03.2004 to 09.09.2012. The application dated 19.03.2015 was objected by the defendants contending that some of the documents have been stolen on 15.02.2013 from the Trust office and in this regard, a theft report was made to the police on 16.02.2013. Responding to the objection raised by the defendants, the plaintiff filed another application on 06.05.2015 praying for permission to lead secondary evidence insofar as, the minutes of meeting between the period 21.03.2004 and 09.09.2012 are concerned. The said applications have been dismissed vide impugned order dated 02.07.2015. 3. The learned counsel for the petitioner submits that whether the documents produced vide application dated 19.03.2015 can be admitted in evidence or not is a question which can be decided only during the trial and at this stage, the trial court could not have rejected the prayer for leading secondary evidence. 4. Opposing the writ petition, the learned counsel for the respondents submits that in application dated 19.03.2015, the plaintiff has not averred the source from which he obtained photocopies of the minutes of meeting of the governing body. There is no whisper in the plaint about the aforesaid documents and therefore, without having laid factual foundation in the suit, the plaintiff cannot be permitted to lead secondary evidence insofar as, the documents mentioned in application dated 19.03.2015 are concerned. Relying on decision in “H. Siddiqui Vs. There is no whisper in the plaint about the aforesaid documents and therefore, without having laid factual foundation in the suit, the plaintiff cannot be permitted to lead secondary evidence insofar as, the documents mentioned in application dated 19.03.2015 are concerned. Relying on decision in “H. Siddiqui Vs. A. Ramalingam”, (2011) 4 SCC 240 , the learned counsel for the respondents submits that provision under Section 65 of the Evidence Act is couched in a very restrictive language and if a party discloses and produces proof that the original document is not traceable then only a party can be permitted to lead secondary evidence. 5. I have carefully considered the submissions of the learned counsel for the parties and perused the documents on record. 6. In Title Suit No. 125 of 2013, the plaintiff has alleged misappropriation of fund, forgery and destructive actions by the respondents. The plaintiff asserted that the defendants illegally operated the bank account and a Trust Deed vide Deed No.6082/2012 was illegally got registered by the defendants. The plaintiff has sought a declaration that the reconstituted Trust Deed is illegal, void and inoperative. Several civil and criminal cases have been instituted between the parties. It is alleged that the defendant nos.1 to 7 in collusion with defendant nos.8 and 9 by virtue of illegal reconstituted Trust Deed, have acted against the welfare of Shiksha Niketan Trust. The trial court has noticed that on the complaint of the plaintiff, a First Information Report was lodged in which chargesheet has been filed for theft against the defendant nos.1 and 3. In the said case, the plaintiff has alleged theft of the register of the minutes of meetings of the Trust. The defendants have also asserted that the documents have been stolen from the office of the Trust on 15.02.2013. Now, in the above facts before the petitioner leads oral evidence to assert and prove that the original documents have already been lost/stolen and before permitting the plaintiff to lead evidence in terms of Section 65 of the Evidence Act, at this stage the trial court could not have rejected application dated 19.03.2015. Merely because a document has been produced, it would not mean that it must be admitted in evidence. It remains open to the court to examine whether the documents produced can be admitted in evidence or not. 7. Merely because a document has been produced, it would not mean that it must be admitted in evidence. It remains open to the court to examine whether the documents produced can be admitted in evidence or not. 7. Considering the aforesaid facts, I am of the opinion that the impugned order dated 02.07.2015 suffers from serious infirmity in law and accordingly, it is set aside. 8. The writ petition stands allowed. Petition allowed.