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2017 DIGILAW 2595 (RAJ)

Devi Lal v. Ram Lal

2017-11-27

DINESH MEHTA

body2017
JUDGMENT : Dinesh Mehta, J. The petitioners have approached this Court invoking its extraordinary supervisory jurisdiction under Article 227 of the Constitution of India laying challenge to the order dated 12.10.2017 passed by learned District Judge, Pratapgarh (hereinafter referred to as the 'Trial Court') whereby the application dated 28.04.2016 preferred by the plaintiffs under Section 65 of the Evidence Act came to be allowed. 2. Shorn of unnecessary details, the facts giving rise to the present case are that the respondent-plaintiff had filed a suit for specific performance of two agreements dated 29.09.2009 and 30.03.2012. 3. During the course of the trial, the plaintiffs filed an application under Section 65 of the Evidence Act, seeking leave to adduce secondary evidence in relation to aforementioned two documents, contending that these documents in original were filed along with the plaint but however have been lost. 4. It is a matter of record that those two original documents which were filed earlier, were however not available on record, for which the Court has initiated departmental enquiry against the persons concerned, while also lodging an FIR in this regard. 5. The petitioners ' defendants objected to the said application under Section 65 of the Evidence Act by contending that the enquiry in relation to the lost agreements is pending before the Investigating Officer and also before the Enquiry Officer, being subject matter of the departmental enquiry. According to them unless such enquiries were concluded, the secondary evidence with respect to the contentious documents cannot be and should not be permitted. 6. The aforesaid application filed by the plaintiff has been allowed by the learned Trial Court vide its order dated 12.10.2017, which has been impugned in the present writ petition. Learned Trial Court while allowing the application observed that the copies of the contentious agreement dated 29.09.2009 and 30.03.2012 have already been placed on record, which being photostat copies have been prepared through mechanical process; and that the investigation in furtherance of FIR and departmental enquiry may take sometime; hence it would not be appropriate to keep the proceedings in abeyance till indefinite period. Considering all these facts, the learned Court below granted permission to lead secondary evidence of the contentious documents and permitted to lead evidence on the basis of such photocopies. 7. Mr. Considering all these facts, the learned Court below granted permission to lead secondary evidence of the contentious documents and permitted to lead evidence on the basis of such photocopies. 7. Mr. Jain, learned counsel for the petitioners assailing the order dated 12.10.2017, submitted that as the investigation by the Police as well as the Departmental Enquiry Officer is pending qua the original agreements; until and unless the original is found or final conclusion of the investigation/enquiry is arrived at, the Court should not have granted permission to lead secondary evidence. He contended that till such time it neither be said with certainty that the original of agreements have lost nor can it be inferred that in whose custody these documents are lying. 8. Mr. Jain further added that the documents in question are neither sufficiently stamped nor registered, for which their secondary evidence is not permissible. 9. In support of his arguments, Mr. Jain relied upon judgments of Hon'ble the Supreme Court in case of H. Siddiqui v. A. Ramalingam reported in AIR 2011 SCW 1886 , particularly the observations which reads thus:- "Provisions of Section 65 of the Act 1872 provide for permitting the parties to adduce secondary evidence. However, such a course is subject to a large number of limitations. In a case where original documents are not produced at any time, nor, any factual foundation has been led for giving secondary evidence, it is not permissible for the Court to allow a party to adduce secondary evidence. Thus, 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. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law. The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon." 10. Mr. Jain further relied upon another judgment of Hon'ble Supreme Court in case of State of Rajasthan & Ors. v. Khemraj & Ors. Therefore, the documentary evidence is required to be proved in accordance with law. The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon." 10. Mr. Jain further relied upon another judgment of Hon'ble Supreme Court in case of State of Rajasthan & Ors. v. Khemraj & Ors. Reported in AIR 2000 SC 1759 to contend that the secondary evidence of the agreements in question cannot be permitted. 11. Heard learned counsel for the petitioners and consider the provisions of law and the judgments cited at Bar. 12. Considering the peculiar facts of the case, when the subject agreements dated 29.09.2009 and 30.03.2012 themselves have been stolen from the record of the Trial Court, for which investigation/enquiry is pending and the photocopy of those documents is very much on record, this Court is of the firm opinion that the learned Court below has committed no error of law in admitting photocopy of the documents as secondary evidence while allowing the application under Section 65 of the Evidence Act. Section 63 of the Evidence Act defines the term "secondary evidence" and takes in its ambit, a copy made from the original by mechanical process which in itself ensures the accuracy. 13. The photostat copy, is a mechanically prepared copy from the original and generally assures accuracy. The photocopy of the agreement therefore comes within the sweep of secondary evidence and such secondary evidence is permissible as per under Clause (c) of Section 65 of the Evidence Act, which reads thus :- "(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." 14. Adverting to the judgments cited by Mr. Jain, first judgment being AIR 2011 SCW 1886 particularly para 10 thereof, it is held that the same is of little help to the petitioners, as vide the aforesaid judgment, Hon'ble the Supreme Court has held that the party seeking leave to adduce secondary evidence should lay factual foundation before giving secondary evidence. 15. In the present case, the facts are not in dispute and they lay strong foundation for leading of the secondary evidence. 15. In the present case, the facts are not in dispute and they lay strong foundation for leading of the secondary evidence. It is an admitted fact that originals of these documents have been stolen from the record, which fact has been pleaded and made basis of the subject application. 16. The second judgment reported in AIR 2000 SC 1759 , has been relied upon by Mr. Jain in support of his arguments that the application is required to be supported by affidavit. 17. A perusal of the judgment aforesaid reveals that it was a case relating to an application seeking production of the map, which application neither contain complete particulars nor did it have any affidavit, for which the Hon'ble Supreme Court has held that such application should contain full details of the documents and must be supported by an affidavit so as to meet the requirement of provisions of Section 65 of the Evidence Act. 18. In the present case the facts entirely different as narrated above. The fact that the original has been lost is not dependent upon any affidavit, inasmuch as the same has been recorded and found by the Trial court itself and the application contains all requisite particulars. 19. Hence, in the extant facts the application under consideration filed under Section 65 of the Evidence Act does not require any affidavit. 20. As far as other arguments of Mr. Jain that the Trial Court cannot permit secondary evidence of the document, for want of payment of appropriate stamp duty and registration are concerned; suffice it to observe that such stage of admissibility of document has yet to come and that such arguments have not been raised on behalf of the petitioners before the Trial Court. 21. In exercise of supervisory jurisdiction, this Court has to decide the correctness of the order on the basis of arguments and facts, which were raised before the Court below. As such the admissibility of these documents have not been examined by the Court below, it would be inappropriate and inexpedient to decide the same at this juncture. More so, because such issue would crop up only when the document is led in evidence. As such the admissibility of these documents have not been examined by the Court below, it would be inappropriate and inexpedient to decide the same at this juncture. More so, because such issue would crop up only when the document is led in evidence. Merely because the secondary evidence of the document has been permitted, it would not take away petitioners' right to raise objection(s) regarding its admissibility for want of registration or for the reason of non-payment of appropriate stamp duty. These objections, as and when raised, shall be decided by the Trial Court in accordance with law. 22. The aforesaid views is fully supported by a judgment of this Court dated 19.04.2017 rendered in S.B. Civil Writ Petition No. 7203/2015 (Lalit Swami v. Union of India & Ors.), wherein this Court has held as under :- "As far as the application under Order 7, Rule 14(3) of the Code of Civil Procedure is concerned, a bare reading of sub-rule (3) shows that the Court is required to examine the reason or cause of not filing the document along with the plaint. At the stage of deciding an application under Order 7, Rule 14(3) CPC, the Court is not required to see whether the document is forged, concocted or unauthorised. The evidentiary value or reliability of the document are required to be seen at the time of marking exhibit and/or at the time of leading evidence. By way of the order impugned, the Court below rejected the application filed by the plaintiff, for the reasons which are neither relevant nor germane, for deciding the same. My aforesaid view is based on the principles enunciated by the Supreme court in the case of Bipin Shantilal Panchal v. State of Gujarat reported in (2001) 3 SCC 1 (Para Nos. 13 to 15). A beneficial reference may also be made of the judgment of this Court reported in 2014 (2) WLN 278 (Raj.) in this regard. The order impugned dated 07.05.2015 rejecting the petitioner's application under Order 7, Rule 14 (3) of the Code of Civil Procedure is therefore, quashed and set aside. Said application dated 29.11.2014 is allowed, the document namely photocopy of the map in question be taken on record. The order impugned dated 07.05.2015 rejecting the petitioner's application under Order 7, Rule 14 (3) of the Code of Civil Procedure is therefore, quashed and set aside. Said application dated 29.11.2014 is allowed, the document namely photocopy of the map in question be taken on record. Needless to observe that the defendants shall always have liberty to raise all just objections in relation to the authenticity, genuineness and admissibility of the document as and when occasion arises. Similarly, the plaintiff shall also have liberty to take appropriate steps, including seeking appropriate leave from the Court." 23. As an upshot of the above discussions, this Court does not find any infirmity or illegality in the order dated 12.10.2017, for which the writ petition at hand is dismissed.