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Himachal Pradesh High Court · body

2015 DIGILAW 783 (HP)

Ved Parkash v. Hari Parkash

2015-06-29

SURESHWAR THAKUR

body2015
JUDGMENT : SURESHWAR THAKUR, J. 1. The plaintiffs/respondents/non-applicants herein have instituted a Civil Suit before the learned trial Court for quashing and setting aside the order of mutation recorded/attested on the strength of a purported family settlement deed of 18.3.1999 arrived at inter-se the parties at contest, as also their predecessor-in-interest. Preceding to adduction of evidence on the material issue, on which onus was cast upon the defendant/applicant/petitioner herein, an application was instituted at the instance of defendant/applicant/petitioner herein under Section 65 of the Indian Evidence Act, for the according of permission to adduce into evidence, photocopy of settlement deed of 18.3.1999 by way of secondary mode, in substitution to its original. The reasons meted out in the application are encompassed in paragraph 4 of the application, whose contents stand extracted hereinafter:- “4. That original of the family settlement deed dated 18.3.1999 and the writing dated 03.07.1998 was with Shri Mani Ram/plaintiff. The original of the writing dated 03.07.1998 was given to Shri Mani Ram on the same day of its wiring and the original of family settlement deed dated 18.03.1999 was given to him i.e. Sh. Mani Ram, after attestation of the mutation on the basis of this deed. The present plaintiffs have taken a false plea that they are not in possession of original of any of the aforesaid deeds. Such plea has been taken by them falsely and fraudulently. Thus, they are not producing the same in the Hon’ble Court.” 2. The respondents/plaintiffs in their reply had launched a vigorous contest to the application being allowed. Their contest was anvilled on an emanation in the crossexamination of the defendant/applicant of none being present at the time of the recording of attestation of mutation on the strength of the aforesaid settlement deed. Given the portrayal in the recitals in the order attesting mutation qua the defendant being present at the apposite stage, hence it is espoused that the possession of the original settlement deed remained with him. As a corollary, it is canvassed that it is now not open to the defendants/petitioners herein to contend before this Court that the copy of purported settlement deed ever remained in the possession of the plaintiffs/non-applicants, besides to contend that the possession of the original settlement deed of 18.3.1999 was ever gained or taken by the plaintiffs/non-applicants. 3. As a corollary, it is canvassed that it is now not open to the defendants/petitioners herein to contend before this Court that the copy of purported settlement deed ever remained in the possession of the plaintiffs/non-applicants, besides to contend that the possession of the original settlement deed of 18.3.1999 was ever gained or taken by the plaintiffs/non-applicants. 3. The learned trial Court while seized of the application dispelled the contention of the defendant/applicant whereas countenanced the manifestation made in the reply of the plaintiffs/non-applicants. Preponderantly the reason which prevailed upon the learned trial Court in dismissing the application was grooved in the fact of there being abysmal lack of proof qua loss of the original settlement deed, hence permission to adduce into evidence its photocopy by way of secondary evidence, being not affordable. The learned counsel for the respondents herein also contended that the defendant/applicant in his written-statement has also not contended the factum of its loss or its destruction or the original having been delivered to deceased plaintiff Mani Ram. Therefore, he contends that now when the application at hand has been instituted after the demise of Mani Ram, the defendant/applicant is estopped to aver that subsequent to the attestation of mutation on strength thereof, its possession was delivered to deceased plaintiff Mani Ram. 4. Uncontrovertedly, Mani Ram, the original plaintiff was, at the stage of institution of the Civil Suit, a party thereto, yet he died prior to the filing of the application at hand. Even though, the learned counsel for the defendant/applicant has pressed into service and has concerted to draw leverage from the provisions of Section 65 (a) of the Indian Evidence Act, which stand extracted hereinafter to contend that it was not incumbent upon the defendant/applicant to prove the factum of its loss or destruction nor hence the reasons as culled out by the learned trial Court in its impugned order for dismissing the application of the defendant-applicant acquire any legal force, especially when there is a pointed averment in the apposite paragraph of the application at hand qua possession of the original of the settlement deed having been delivered to deceased Mani Ram. He has besides contended that even the contemplated condition, in Section 65 (a) qua according of permission to adduce into evidence by way of secondary mode a photocopy of the settlement deed in replacement of its original, in as much, as preceding such according of permission, the defendant/applicant being enjoined to serve a notice upon the person in whose possession it is and his despite his having been served upon a notice by the applicant/defendant to produce it omits to produce it, hence facilitating affording of permission by the Court concerned to adduce photocopy thereof by way of secondary mode, also stands waned, in view of proviso (2) of Section 66 of the Indian Evidence Act which mandates that given the nature of the case, the adverse party is presumed to have knowledge that he would be required to produce it. As a corollary when with a palpable manifestation in the application at hand of the deceased Mani Ram being in possession of the original of the settlement deed, obviously he is presumed to be in the know of the fact that he would be required to produce it, as such, even the serving upon him a notice to produce it, as a pre-requisite to pave way for the application of Section 65 (a) of the Indian Evidence Act, was not imperative. Even the acceptance of the above contention of the learned counsel for the defendant/applicant would not facilitate the according of permission to him to adduce into evidence a photocopy of the original settlement deed by way of secondary mode, for the reason that the person in whose averred possession the original is being no longer alive at the time of institution of the application at hand. In face of his demise, neither any notice to produce the original could be served upon him nor in case he omitted to produce it after his having been served with a notice to produce it as contemplated in Section 65 (a) of the Indian Evidence Act, the necessary permission to the defendant/applicant to adduce into evidence a photocopy of the original by way of secondary mode, was hence affordable, nor also, clause (2) of Section 66 envisaging as a pre condition to its invocation the knowledge of the adverse party qua the necessity of its production, hence relieving the defendant/applicant to serve upon him a notice to produce it as envisaged in clause (a) of Section 65 of the Indian Evidence Act, can obviously be of no avail to the defendant/applicant, as the presumption as enshrined in clause (2) of Section 66 of Indian Evidence Act, hence relieving the rigor of clause (a) of section 65 besides of the substantive part of section 66 of Indian Evidence Act is both arouse-able as well as invokable, only in the event of the party in possession of the original document being alive at the time of institution of the application at hand. However, given the factum that Mani Ram in whose averred possession the original of the purported settlement deed was, being dead at the time of institution of the application, consequently, neither in terms of clause (a) of Section 65 of Act, any notice could be served upon him to produce it, besides on his omission to produce it despite notice, no permission to adduce into evidence photocopy of the original by way of secondary mode was affordable nor also clause (2) of Section 66 of the Indian Evidence Act in relaxation of the rigor of substantive provisions of section 66 of the Indian Evidence Act gives any succor to the defendant/applicant to contend with any force or vigour before this Court especially when the person pointedly averred to be in possession of the original, at the time of institution of the application at hand was dead, hence was in the know of the fact that he would be required to produce it. Reiteratedly, the factum of the demise of Mani Ram at the time of institution of the application at hand deprives the defendant/applicant to canvass with any empowerment before this Court that either clause (a) to Section 65 of the Indian evidence Act or clause (2) of Section 66 of the Indian Evidence Act are invokable at his instance. Consequently, the reasons as prevailed upon the learned trial Court in dismissing the application are embedded in the factum of the inability of the defendant-applicant to prove the loss or destruction of the original cannot stand displacement: “65 (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. Of any person out of reach of or not subject to, the process of the Court. Of any person legally bound to produce it. And when, after the notice mentioned in Section 66, such person does not produce it.” “66 (2) When, from the nature of the case, the adverse party must know that he will be required to produce it.” 5. The learned counsel for the petitioner/applicant has also proceeded to contend that the alternative condition in clause (c) of Section 65 of Indian Evidence Act, contemplating the fact that when for reasons other that the original being omitted to be proved to be lost or destroyed, photocopy of the same can be permitted to be adduced, which legislative contemplated condition is constituted in the event of production of the original being not possible and the impossibility of its production not arising on account of any default or neglect on the part of the petitioner herein, hence debarring him to produce it within a reasonable time. However, when Mani Ram to whom the possession of the original was delivered was dead at the time of institution of the application, and who hence had no opportunity to repudiate the factum recited in the application at hand of his being possession of the original settlement deed or its being in his possession or power nor also when the defendant/applicant in his written-statement had averred that the original of the settlement deed was hence in possession of or in the power of Mani Ram. In sequel when the factum of the deceased Mani Ram being in possession or power of the original has remained not substantially established, the defendant/applicant is de-facilitated, to contend that given the possession of the original with deceased Mani Ram at any stage its non-production at the instance of the defendant/applicant does not arise on account of his default or neglect. As such, consequently when no permission hence can be accorded to him to adduce by way of secondary mode a photocopy thereof besides when it is not averred in the application that the person in whose possession it is, omitted to produce it or delayed its production hence to preclude a procrastinated prolongation of adduction of complete evidence at the instance of the defendant/applicant on whom the onus of proving the material issue was cast, he then may be permitted to adduce by way of secondary mode, in substitution to the original, a photocopy thereof. However, when the aforesaid parameters are neither enshrined nor existed in the application at hand, nor when there is adequate proof of Mani Ram since dead in whose purported possession the original settlement deed was, nor also when there is substantial material portraying the factum of his having ever delayed its production hence forestalling the adduction of evidence at the instance of the defendant/applicant on the material issue on which onus was cast upon him, therefore to preempt a prolongation of the exercise of adduction of evidence, a photocopy of the original by way of secondary mode, being permitted to be adduced into evidence at the instance of the defendant/applicant, was affordable. In sequel then, it has to be concluded that neither when deceased Mani Ram is proved to be in possession or in power of the original, as such, the default in the non-production of the original cannot said to be arising at his instance nor it can also be said that the deceased Mani Ram hence omitted to produce it within a reasonable time, hence to preempt a procrastinated prolongation of adduction of evidence, at the instance of defendant/applicant, permission to adduce it by way of secondary mode, is imperative. 6. In aftermath, the contention as advanced before this Court by the learned counsel for the plaintiffs/respondents is countenanced as well as accepted. Moreover, the reasons as afforded by the learned trial Court in dismissing the application at hand also stand vindication. 6. In aftermath, the contention as advanced before this Court by the learned counsel for the plaintiffs/respondents is countenanced as well as accepted. Moreover, the reasons as afforded by the learned trial Court in dismissing the application at hand also stand vindication. Therefore the impugned order is not ridden with any taint or vice of it being ingrained with any misdemeanor. The petition is dismissed, as also, the pending applications, if any. The parties through their counsel are directed to appear before the learned trial Court on 7th August, 2015. Records be sent back.