United India Insurance Company Limited v. Ratlam Synthetic Rope Mfg. Co. Factory
2015-09-16
PRAKASH SHRIVASTAVA
body2015
DigiLaw.ai
ORDER 1. This writ petition under Article 227 of the Constitution of India is at the instance of the insurance company challenging the order dated 4.4.2015 passed by the learned District Judge rejecting the petitioner's application under section 65 of the Evidence Act seeking permission to adduce the secondary evidence. 2. In brief, in the arbitration proceedings an award was passed against the petitioners and the petitioners had filed objection before the learned District Judge under section 34 of the Arbitration and Conciliation Act and the parties were permitted to lead evidence. The petitioner in that process had filed an application under section 65 of the Evidence Act seeking permission to file the photocopy of investigation report of Shri M.L. Tiwari and the complaint of one Ramnarayan Solanki as secondary evidence and the learned District Judge by the impugned order has rejected the said application. 3. Learned counsel appearing for the petitioner submits that these documents were submitted before the Arbitrator and are not traceable now, therefore, the petitioner is required to file the same as secondary evidence and is entitled to lead secondary evidence under section 65(a) of the Evidence Act. 4. As against this, learned counsel for the respondents have supported the impugned order. 5. Having heard the learned counsel for the parties and on the perusal of the record, it is noticed that the learned District Judge while passing the impugned order and rejecting the petitioner's application under section 65 of the Evidence Act, has assigned elaborate, due and cogent reasons. It has been noted that the investigation report which according to the petitioner was prepared by Shri M.L. Tiwari, appears to have been prepared by some M.P. Tiwari. The report is dated 28.3.1990 a photocopy of which is now sought to be produced after 25 years as secondary evidence. The petitioner has not disclosed as to who is in possession of the original report and had also not filed any affidavit in this regard. So far as the photocopy of the complaint of Ramnarayan Solanki is concerned, no date is reflected in the said complaint and no affidavit was filed by the insurance company that the complainant Ramnarayan Solanki has died, therefore, it is not possible to obtain the original copy of the complaint.
So far as the photocopy of the complaint of Ramnarayan Solanki is concerned, no date is reflected in the said complaint and no affidavit was filed by the insurance company that the complainant Ramnarayan Solanki has died, therefore, it is not possible to obtain the original copy of the complaint. The petitioner had also not filed any affidavit stating that the originals of these documents have been lost or they could not be traced out by making all possible efforts. The learned District Judge has also noted that the originals of these documents are not available for comparison and that no evidence of death of Ramnarayan Solanki or M.P. Tiwari has been produced. The learned District Judge has also noted that there is no material to ascertain that these documents were produced before the Arbitrator. Since the condition of section 65 of the Evidence Act were not satisfied, therefore, learned District Judge has not committed any error in rejecting the application. 6. The Supreme Court in the matter of Ashok Dulichand v. Madahavlal Dube and another, reported in (1975)4 SCC 664 , has held that when photo-copy of a document is produced in secondary evidence and the parties concerned are not shown to be in possession of original and circumstances for the preparation of the photocopy is also not disclosed, such a document is not liable to be admitted in evidence. The Supreme Court in the matter of Smt. J. yashoda v. Smt. K. Shobha Rani, reported in AIR 2007 SC 1721 , has held that in order to enable a party to produce secondary evidence, it is necessary for the party to prove existence and execution of the original document. In the matter of M/s Parekh Brothers v. Kartick Chandra Saha and others, reported in AIR 1968 Calcutta 532, the Calcutta High Court has held that to admit the secondary evidence, it is not sufficient to show merely that original document was lost and that a true copy of the document will not be admissible under section 63 unless it is shown that it had been made from or compared with the original, and there must be sufficient proof of search for the original to render secondary evidence admissible and it must be established that the party had exhausted all resources and means in search of the document which were available to him.
The necessary requirement as laid down in above judgment for admitting photocopy as secondary documents, have not been established in the present case. 7. Counsel for the petitioners has placed reliance upon the judgment of the Supreme Court in the matter of Marwari Kumhar and others v. Bhagwanpuri Guru Ganeshpuri and another, reported in AIR 2000 SC 2629 , but that was a case of producing the ordinary copy of the judgment which was a public document, but the present case stands on different footing. 8. In view of the above analysis, I am of the opinion that the learned District Judge has not committed any patent illegality in rejecting the petitioner's application under section 65 of the Evidence Act. 9. Even otherwise, the scope of interference in exercise of jurisdiction under Article 227 of Constitution of India is limited. The Supreme Court in the matter of Shalini Shyam Shetty and another v. Rajendra Shankar Patil, reported in (2010)8 SCC 329 , has held that High Court in exercise of its power of superintendence cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the Tribunals or Courts subordinate to it, is a possible view. The High Court can exercise this power when there has been a patent perversity in the orders of Tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. 10. Thus, no case for interference is made out. The writ petition is accordingly dismissed.