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2016 DIGILAW 1546 (HP)

Roshan Lal Sharma v. Wattan Singh Dogra

2016-08-01

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, Judge Challenge herein is to an order dated 6.5.2016 passed by learned Rent Controller, Court No. 4, Hamirpur in an application under Section 65 of the Evidence Act registered as CMA (R.P. No. 1 of 2012) No. 125/2016, whereby the permission as sought by the petitioner (hereinafter referred to as the respondent) to prove the lease deed, Annexure P-4 by way of leading secondary evidence has been declined and the application dismissed. 2. The complaint is that learned Rent Controller below has failed to exercise the jurisdiction vested in it in a just and objective manner and erroneously dismissed the application irrespective of the respondent herein (petitioner before learned Rent Controller below) having admitted the signature of the lessor late Amar Singh on this document, the permission as sought to prove the same by way of leading secondary evidence is stated to be wrongly declined. The impugned order, Annexure P-1, as such, is stated to be false and oppressive, hence not legally sustainable. 3. Mr. Tarun K. Sharma, learned counsel representing the petitioner has vehemently argued that the execution of the lease deed by late Amar Singh stands established from the own admission of the petitioner, who allegedly while in the witness box has admitted the signatures of the executant said Shri Amar Singh thereon. Also that original lease deed is not traceable and even Shri Amar Singh, the executant has also died. Therefore, the original or primary evidence of this document, according to Mr. Sharma, cannot be produced. 4. On the other hand, Mr. Ashwani Sharma, learned counsel representing the respondent has vehemently argued that without there being any proof of the execution of the lease deed by deceased Amar Singh in favour of the respondent-tenant, no question of grant of permission to lead secondary evidence does arise. Mr. Sharma, has also emphasized that ingredients of Section 63 and 65 of the Evidence Act are not at all attracted in this case and as such, learned Rent Controller has rightly dismissed the application. 5. On analyzing the rival submissions and also the record, it is amply clear that the petitioner has filed a petition for eviction of the respondent from the demised premises. 5. On analyzing the rival submissions and also the record, it is amply clear that the petitioner has filed a petition for eviction of the respondent from the demised premises. The defence of the respondent, however, is that he is in possession of the demised premises in the capacity of lessee having paid Rs.1,50,000/- as lease money for a period of 99 years to its owner late Shri Amar Singh. Learned counsel representing the petitioner, however, submits that there is no question of execution of legal and valid lease deed by late Shri Amar Singh because he was only a co-sharer in the demised premises along with petitioner and one Rajinder Jaar. Any how, the lis is not considered on merits or any observations on merits are required to be made. This Court, however, is concerned only with a short question i.e. qua admissibility of the permission sought to prove the photocopy of the lease deed, Annexure P-4 by way of allowing the respondent to produce the secondary evidence. 6. A bare perusal of Section 65 of Indian Evidence Act makes it crystal clear that secondary evidence may be given of the existence, condition, or contents of a document in either of the situations enumerated a to g thereunder. As a matter of fact, the case of the petitioner did not fall under either of such situation for the reason that no proof is forthcoming qua existence of original of Annexure P-4. Annexure P-4 is a copy of unregistered document. The condition precedent to grant permission to prove a document by way of allowing to produce secondary evidence is that the said document is in existence and also that the original or primary evidence thereof is either lost, missing or not available. The loss, destruction or misplacement of the document or that the same is/was in possession of either adversary party of the applicant or executant thereof should be proved on record. A photocopy of the document cannot be admitted in secondary evidence. A certified copy of the document, however, is legally admissible in evidence. In the case of a registered document also, it is the certified copy thereof which is admissible in secondary evidence. A photocopy of the document cannot be admitted in secondary evidence. A certified copy of the document, however, is legally admissible in evidence. In the case of a registered document also, it is the certified copy thereof which is admissible in secondary evidence. The apex Court in Government of Andhra Pradesh versus Karri Chinna Venkata Reddy and others, AIR 1994 Supreme Court 591 has held that a photocopy of document is not admissible in evidence until or unless the original record of such document is produced or examined. This judgment reads as follows: “We have heard the learned counsel for parties. Two questions arise, one, if the additional documents could have been admitted in writ jurisdiction and second if reliance could be placed on them as they were only Photostat copies and the High Court admitted the documents without recording any finding that the respondents made out a case for acceptance of secondary evidence. The admission of additional documents by the High Court in writ jurisdiction is an exercise of discretion with which this Court does not normally interfere. But the genuineness of documents is an aspect which goes to the root of the matter. If the records have been tampered and fictitious documents were produced before the High Court then it certainly vitiates the findings. In our opinion, in absence of any finding on it, may be because it was not raised in the High Court yet being a fundamental question which if found to be correct would render entire proceedings bad, it appears expedient to direct the Commissioner of Survey and Settlement to examine it after affording opportunity to both sides to lead evidence. The finding shall be recorded after examining the original records.” 7. Now if the claims and counter-claims as laid by the parties on both sides are scrutinized, in view of what has been said hereinabove, Annexure P-4 is a photocopy of so called lease deed. Nothing is there in the application, Annexure P-2 as to why the original thereof is not available. Merely that the original lease deed is not traceable and has been lost is not sufficient to invoke jurisdiction vested in the Court under Section 65 of the Act. Merely that the petitioner has admitted the signatures of Amar Singh, the so called executant of this document is not sufficient to infer that the contents of this document also stand established. Merely that the petitioner has admitted the signatures of Amar Singh, the so called executant of this document is not sufficient to infer that the contents of this document also stand established. The Apex Court in H. Siddiqui(dead) by LRs v. A.Ramalingam, (2011) 4 Supreme Court Cases, 240, a case having more or less similar facts has held that mere admission on the part of the respondent qua his signature on the copy of document (power of attorney in that case) should not be taken to believe that the contents thereof also stand established. Therefore, the respondent is not justified in claiming that in view of the petitioner has admitted the signatures of Amar Singh, the executant on this document, existence thereof stands established. The present, as such, is a case where there is no proof of existence of original lease deed nor is there any explanation having come on record as to how and where it has been lost and that despite of efforts made, the same could not be traced out. It is also not the case of the respondent that the original lease deed was retained by the executant, Shri Amar Singh with him. Therefore, the death of the executant is also of no help to the case of the respondent. 8. It is significant to note that the respondent is still in the witness box. He may produce some evidence qua execution of the lease deed and the existence of the original. If he is able to produce such evidence, it is only thereafter, he is entitled to approach the trial Court for seeking permission to prove the same by way of leading secondary evidence, that too, in terms of the provisions contained under Sections 63 and 65 of the Evidence Act. Therefore, learned Rent Controller has rightly considered the application. Since no case is made out for granting permission to the respondent to produce the lease deed by way of leading secondary evidence, it cannot be said that the order under challenge is neither legally nor factually sustainable. The same rather calls for no interference. 9. For all the reasons hereinabove, this petition fails and the same is accordingly dismissed. Pending applications, if any, shall also stand disposed of.