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2015 DIGILAW 434 (RAJ)

Kishore Kumar v. Chanda

2015-02-16

ARUN BHANSALI

body2015
JUDGMENT : Arun Bhansali, J. This writ petition is directed against the order dated 05.08.2013 passed by the trial court whereby the application filed by the petitioner under Section 65 of the Evidence Act 1872 ('the Act') has been rejected. 2. The petitioner-plaintiff filed a suit for recovery of Rs.15,800/-. It was, inter alia, claimed in the suit that a sum of Rs.15,000/- was lent by the plaintiff to one Gopal Das on 27.09.2005 and for securing the payment, Gopal Das gave a Cheque of Rs.15,000/- and the date of payment was 27.10.2005; Gopal Das died on 29.09.2005; the cheque was produced before the Bank on 05.11.2005 when the same was dishonoured on account of insufficient funds, which was returned by the Bank with memo; the defendants, who are legal representatives of the deceased Gopal Das were reminded several times for payment of the said amount, however, the same was not paid. Ultimately, the suit was filed seeking recovery of the said amount. Alongwith the suit, the plaintiff filed photocopy of the cheque. 3. A written statement was filed by the defendants-respondents denying the receipt of amount by Gopal Das and delivery of any cheque. 4. During pendency of the suit an application was filed by the plaintiff under Section 65 of the Act. It was, inter alia, indicating that alongwith the suit photocopy of the cheque and memo sent by the Bank indicating the dishonour of the cheque was filed; the original cheque and memo was delivered to the counsel for producing before the court, which has been misplaced by the counsel and are lost; the photocopy of the cheque and bank memo are of the original cheque and original memo, which are like the original and, therefore, permission to lead secondary evidence qua the said documents be granted. Alongwith the application, affidavits of the plaintiff and that of the counsel were filed. 5. The defendants-respondents resisted the application. It was, inter alia, contended that the affidavit of the person to whom the cheque and the memo have been handed over has not been filed, the documents have not been compared and, therefore, the documents cannot be accepted as secondary evidence. 6. 5. The defendants-respondents resisted the application. It was, inter alia, contended that the affidavit of the person to whom the cheque and the memo have been handed over has not been filed, the documents have not been compared and, therefore, the documents cannot be accepted as secondary evidence. 6. The trial court after hearing the parties found that the language of the affidavits of the plaintiff and the counsel were exactly the same and, therefore, their version cannot be taken into consideration; as the documents could not be produced on account of negligence of the plaintiff, secondary evidence cannot be produced. The court also found that under the provisions of Order 7, Rule 14 CPC, original documents are required to be filed and for any reason they can't be produced, the documents alongwith application under the provisions of Order 7, Rule 14 (3) CPC, after seeking the permission only could be produced and when even the original could be produced only with the permission, the photocopy, when the concerned person is already dead cannot be accepted as secondary evidence otherwise also for the lapse or neglect of the plaintiff. The document under Section 65 of the Act was not admissible as secondary evidence and, consequently, rejected the application. 7. It is submitted by learned counsel for the petitioner that the trial court committed error in dismissing the application filed by the petitioner. It was claimed that the documents were handed over to the counsel and the counsel lost the same and the petitioner cannot be punished on account of the same. It was submitted that the application was duly supported by affidavits of the plaintiff as well as counsel, however, the trial court committed mistake in rejecting the affidavits only on account of the form and has ignored the substance. It was submitted that under the provisions of Section 63(3) and 65(c) of the Act, the secondary evidence of the documents could be led and, therefore, the petition may be accepted. 8. Reliance was placed on Marwari Kumhar and Ors. v. Bhagwanpuri Guru Ganeshpuri and Anr., (2000) 6 SCC 735 . 9. Vehemently opposing the submissions, learned counsel for the respondents submitted that the respondents-defendants have been questioning the validity of the documents. 8. Reliance was placed on Marwari Kumhar and Ors. v. Bhagwanpuri Guru Ganeshpuri and Anr., (2000) 6 SCC 735 . 9. Vehemently opposing the submissions, learned counsel for the respondents submitted that the respondents-defendants have been questioning the validity of the documents. A bare look at the affidavit filed by the counsel clearly indicates that the same was merely a copy of the affidavit filed by the plaintiff and, therefore, the same could not be relied on. It was further submitted that the original documents itself should have been produced alongwith the plaint and now the photocopy, which was filed is sought to be utilised for the purpose of leading the secondary evidence, which is not permissible, inasmuch as, it is only the copies, which have been compared with the original, which can be taken into consideration and not otherwise. It was prayed that the writ petition be dismissed. 10. Reliance was placed on J. Yashoda v. K. Shobha Rani, (2007) 5 SCC 730 . 11. I have considered the rival submissions and have perused the material placed on record. 12. There is no dispute that the documents sought to be produced as secondary evidence were produced alongwith plaint, which are photocopies of the cheque and the return memo from the Bank. It is the case of the plaintiff that the originals, photocopies of which were produced alongwith the plaint were handed over to the counsel, however, the same were misplaced/lost by the counsel and, therefore, permission was sought to lead secondary evidence in the form of photocopies produced with the plaint. The application was supported by affidavits of the plaintiff and the counsel. 13. It is no doubt true that the affidavit filed by the counsel was almost exactly in the same language, in which the affidavit was produced by the plaintiff, however, as submitted by counsel for the plaintiff, the substance of the affidavit was required to be looked into by the trial court and not the form. The substance of the affidavit filed by the counsel was that the original documents were handed over to him, which were misplaced/lost by him. 14. The relevant provisions for production of secondary evidence in the present circumstances are Section 63 and 65(c) of the Act, which reads as under:- "63. Secondary evidence. The substance of the affidavit filed by the counsel was that the original documents were handed over to him, which were misplaced/lost by him. 14. The relevant provisions for production of secondary evidence in the present circumstances are Section 63 and 65(c) of the Act, which reads as under:- "63. Secondary evidence. - Secondary evidence means and includes- (1) certified copies given under the provisions hereinafter contained; (2) copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies; (3) copies made from or compared with the original; (4) counterparts of documents as against the parties who did not execute them; (5) oral accounts of the contents of a document given by some person who has himself seen it. 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:- (c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time; In case (a), (c) and (d), any secondary evidence of the contents of the document is admissible." 15. A bare look at the above provisions would reveal that as per Section 63(3) of the Act, a copy made from or compared with the original, is secondary evidence of its contents, a copy compared with the original by copying machine is secondary evidence and secondary evidence of a document can be allowed to be let in only when the original is shown to have lost or misplaced. 16. Secondary evidence, as a general rule, is admissible in absence of primary evidence in certain circumstances enumerated in Section 65 of the Act. Under Section 65(c) of the Act when the original has been destroyed or lost or when the party offering evidence of its contents cannot for any other reason not arising from his own default or neglect, produce it in a reasonable time, secondary evidence may be given of the existence. Section 65(c) of the Act comes into play when the original has been destroyed or lost. The word lost merely signifies that it cannot be discovered. 17. Section 63(3) of the Act prescribes two alternatives viz. Section 65(c) of the Act comes into play when the original has been destroyed or lost. The word lost merely signifies that it cannot be discovered. 17. Section 63(3) of the Act prescribes two alternatives viz. first that it may be a copy made from the original and second that it must be a copy compared with the original. Both the conditions are not required to co-exist as the word 'or' is being used. 18. In the present case, the petitioner has clearly sought to contend that the photocopies were made from the original and, therefore, the conditions of Section 63(3) of the Act are fulfilled and in view of the affidavit of the counsel, the condition of Section 65(c) of the Act also stands fulfilled and, therefore, it cannot be said that the photocopies produced by the petitioner alongwith the plaint could not be produced by way of secondary evidence in terms of provisions of the Act. 19. So far as the judgments cited by learned counsel for the parties are concerned, while the judgment in the case of Marwari Kumhar (supra) deals with a case of ordinary copy of judgment and a certified copy of decree, which are cases governed by Section 63(1) & (2) of the Act and the judgment essentially deals with the aspect as to whether sub-clause (c) of Section 65 of the Act was dependent on sub-clause (f) of Section 65 of the Act. 20. So far as the judgment in the case of J. Yashoda (supra) is concerned, the same only deals with the non-fulfillment of requirement of Section 65(a) of the Act, which is not the case as the case pertains to Section 65(c) of the Act, which conditions stands fulfilled. 21. So far as the ground of Order 7, Rule 14 CPC invoked by the trial court for rejection of the application is concerned, the reliance placed on the said provision for the purpose of dealing with the application for permission to lead secondary evidence was wholly misplaced and has no role to play so far as decision of application under Section 65 of the Act is concerned. 22. In view of the above discussion, the writ petition filed by the petitioner-plaintiff is allowed. The order dated 05.08.2013 passed by the trial court cannot be sustained, the same is, therefore, set aside. 22. In view of the above discussion, the writ petition filed by the petitioner-plaintiff is allowed. The order dated 05.08.2013 passed by the trial court cannot be sustained, the same is, therefore, set aside. The application filed by the petitioner-plaintiff under Section 65 of the Act is allowed. 23. No order as to costs. Writ Petition Allowed.