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2017 DIGILAW 169 (HP)

Mahboob Hussan v. Vidya Sharma

2017-03-14

TARLOK SINGH CHAUHAN

body2017
JUDGMENT Tarlok Singh Chauhan, J. —This revision petition under Section 115 read with Section 151 of the Code of Civil Procedure is directed against the order passed by the trial Court on 22.5.2014 whereby the application filed by the respondents/defendants for leading secondary evidence has been allowed. 2. The petitioner/plaintiff filed a suit for recovery of possession under Section 6 of the Specific Relief Act on the ground that he had been forcibly dispossessed on 12.3.2011. 3. The suit was contested by the respondents/defendants by filing written statement wherein their main plea raised therein was that the petitioner/plaintiff himself had voluntarily surrendered the possession of the shop on 10.3.2011 and to that extent even a writing had been executed, the original whereof had been handed over to the petitioner/plaintiff. 4. During the pendency of the suit, an application under Order 11, Rule 14 of CPC came to be filed by the respondents/defendants seeking production of the original writing dated 10.3.2011. 5. This application was contested by the petitioner/plaintiff on the ground that there was no such document executed on 10.3.2011 and, therefore, there was no question of the petitioner/plaintiff being in possession thereof. 6. The learned trial Court vide its order dated 7.9.2011 disposed of the application by observing as under: "10. Since the plaintiff had denied the very existence and custody of the document dated 10.3.2011, therefore, to my mind, the present application having been moved before this Court becomes infructuous. 11. However, respondent shall be at liberty to move appropriate application for leading secondary evidence etc. and in case defendants succeed in proving the possession of such document with the plaintiff, then at the appropriate stage, an adverse inference can be drawn against the plaintiff. The application is accordingly disposed of." 7. It was on the basis of the observations contained in the aforesaid order that the respondents thereafter moved an application under Section 65 of the Indian Evidence Act (for short ''Act'') seeking permission to lead evidence qua the document dated 10.3.2011. The petitioner/plaintiff contested the application by again denying the very existence of the document in question. 8. It was on the basis of the observations contained in the aforesaid order that the respondents thereafter moved an application under Section 65 of the Indian Evidence Act (for short ''Act'') seeking permission to lead evidence qua the document dated 10.3.2011. The petitioner/plaintiff contested the application by again denying the very existence of the document in question. 8. The learned trial Court after hearing the parties, allowed the application mainly on the ground that in the earlier application filed by the respondents/defendants under Order 11, Rule 14 CPC, the petitioner/plaintiff had already been called upon to produce the original document which he denied to have executed and possessed and, therefore, the document was essential to determine the matter in controversy between the parties. It was further observed that as regards the genuineness of the document, the said issue can be adjudicated only when the evidence has been adduced by the respondents, which obviously can only be adduced after the secondary evidence is permitted to be led. 9. Mr. B.C. Negi, Senior Advocate, would strenuously argue that in absence of notice under Section 66 of the Act, the application under Section 65 of the Act was not maintainable and in support of his contention, would rely upon the following judgments: (i) Purna Chandra Patnaik v. Kalidas Sen and others, AIR 1973, Orissa 65 ; (ii) Ashok Dulichand v. Madhavlal Dube and another AIR 1975, SC 1748 ; (iii) Smt. Sulochana Devi Bubna v. Govinda Chandra Nag and others, AIR 1986, Calcutta 430 ; (iv) J. Yashoda v. K. Sobha Rani, 2007 (5) SCC 730 ; and (v) U. Sree v. U.Srinivas 2013 (2) SCC, 114 . 10. On the other hand, Mr. Deepak Kaushal, learned counsel for the respondents would argue that the very object and purpose of issuing notice under Section 66 of the Act is to make a party aware and since the petitioner/plaintiff had already been put to notice when application under Order 11, Rule 14 CPC was served upon him, therefore, there was no question of his feigning ignorance regarding the document which was sought to be produced from his custody. After all what Section 66 contemplates is only putting the opposite party to notice. I have heard learned counsel for the parties and gone through the records of the case carefully. 11. Section 66 of the Evidence Act, reads as under: "66. After all what Section 66 contemplates is only putting the opposite party to notice. I have heard learned counsel for the parties and gone through the records of the case carefully. 11. Section 66 of the Evidence Act, reads as under: "66. Rules as to notice to produce. -Secondary evidence of the contents of the documents referred to in section 65, clause (a) , shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, [or to his attorney or pleader,] such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case: Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it:- (1) when the document to be proved is itself a notice; (2) when, from the nature of the case, the adverse party must know that he will be required to produce it; (3) when it appears or is proved that the adverse party has obtained possession of the original by fraud or force; (4) when the adverse party or his agent has the original in Court; (5) when the adverse party or his agent has admitted the loss of the document; (6) when the person in possession of the document is out of reach of, or not subject to, the process of the Court." Whereas the Order 11, Rule 14 CPC reads thus: 14. Production of documents. - It shall be lawful for the court, at any time during the pendency of any suit, to order the production by any party thereto, upon oath, of such of the documents in his possession or power, relating to any matter in question in such suit, as the court shall think right; and the court may deal with such documents, when produced, in such manner as shall appear just." 12. It would be evidently clear from both the provisions quoted above that the purpose of the notice under either of them is only to put the other party to notice to produce the document in whose possession or power the document is. It would be evidently clear from both the provisions quoted above that the purpose of the notice under either of them is only to put the other party to notice to produce the document in whose possession or power the document is. This is to afford an opportunity to the party by producing original to secure best evidence of its contents. The effect of a notice to produce is that the party serving it may give secondary evidence of the document if it is not produced. 13. Mr. B.C. Negi, Senior Advocate, assisted by Mr. Pranay Pratap Singh, Advocate, learned counsel for the petitioner would strenuously argue that in order to enable a party to produce secondary evidence, it is necessary for a party to prove the existence and execution of the original documents and only thereafter can the secondary evidence be admitted. He would further contend that secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. 14. Obviously, there cannot be any quarrel with the proposition laid down in the authorities relied upon by the petitioner. However, the only question to be determined is as to whether the proposition expounded therein is applicable to the fact situation obtaining in the present case. 15. Admittedly, it was the specific case of the respondents from the very beginning that the petitioner had voluntarily surrendered the possession of the shop in dispute to the respondents/defendants on 10.3.2011, where after the defendants had put their lock and writing to this effect was also executed and the original writing when scribed was also handed over to the plaintiff with a view that the defendants may not claim arrears of rent. This is so contended in para 2 of the written statement, which reads thus: "2. That in reply to para No.2 of the plaint it is submitted that after the death of Shri Pardeep Sharma, the present defendants inherited the suit property. This is so contended in para 2 of the written statement, which reads thus: "2. That in reply to para No.2 of the plaint it is submitted that after the death of Shri Pardeep Sharma, the present defendants inherited the suit property. It is submitted that the plaintiff failed to pay arrears of rent for more than 3 years and was unable to pay the same therefore, he vacated the shop and in lieu of the same the defendants waived the arrears of rent. The plaintiff had voluntarily surrendered the possession of the shop in dispute to the defendants on 10/03/2011, the defendants put their locks in the same. Not only this, a writing was also executed in between the parties before the witnesses, which is attached. Rest contents of the para are denied. The original writing was kept by the plaintiff with a view that the defendant may not claim arrear of rent." 16. Thus, it is absolutely clear that right from the day one, the categorical defence of the respondents is that the plaintiff voluntarily surrendered the premises after execution of the document, the original whereof is with the plaintiff. Not only this, thereafter the respondents moved an application under Order 11, Rule 14 read with Section 151 CPC calling upon the petitioner/plaintiff to produce on record the original writing dated 10.3.2011 for which the possession of the disputed shop was alleged to have been voluntarily surrendered by the petitioner to the respondents and such writing was alleged to have been handed over to the petitioner. 17. Thus, the sum and substance of the application filed by the respondents under Order 11, Rule 14 CPC was in the nature of the application under Section 66 of the Act and, therefore, non-service of the specific notice under Section 66 of the Evidence Act upon the petitioner in the given facts and circumstances is of no avail as no prejudice would be caused to him. Consequently, the decision relied upon by the petitioner are not at all applicable to the facts obtaining in the instant case. Moreover, the proposition argued before this Court is not even the defence taken up by the petitioner before the Court below. 18. Consequently, the decision relied upon by the petitioner are not at all applicable to the facts obtaining in the instant case. Moreover, the proposition argued before this Court is not even the defence taken up by the petitioner before the Court below. 18. The learned trial Court has categorically held that as regards the question of genuineness of the claim in question, the same can be adjudicated only when the evidence has been adduced by the respondents in order to prove the document and the petitioner has also lead evidence to rebut the same. The order passed by the learned Court below is perfectly in tune with the settled law and thus there is no infirmity, illegality or much less perversity in the order passed by the learned trial Court calling upon interference by this Court in exercise of the original jurisdiction. 19. Consequently, there is no merit in this petition and the same is accordingly dismissed, so also the pending application(s) if any, leaving the parties to bear their own costs. 20. It needs to be observed that the present suit is a summary suit filed under Section 6 of the Specific Relief Act and appears to be pending adjudication since 16.3.2011 and the very purpose of filing the same for availing speedy remedy appears to have been defeated on account of such long pendency. Therefore, in such circumstances, the learned trial Court is directed to decide the case as expeditiously as possible and in no event later than 30th June, 2017. The parties are directed to appear before the learned trial Court on 25.03.2017. Registry is directed to send the record of the case to the learned trial Court forthwith, so as to reach well before the date fixed.