Research › Search › Judgment

Rajasthan High Court · body

2018 DIGILAW 1848 (RAJ)

Vimla Devi v. Upendra Nath

2018-09-06

ALOK SHARMA

body2018
JUDGMENT ALOK SHARMA, J. 1. Under challenge in these two petitions are the orders both dated 20-10-2016 passed by Additional District Judge No.2 Beawar, District Ajmer in Objections No.106/2012 and 107/2012, respectively dismissing the objectors' application under Section 65 of the Evidence Act. As common issues of facts and law are involved, these petitions are being disposed of by this judgment. 2. Relevant background facts are that a suit for specific performance (No.50/1998) at the instance of one Upendra Nath was decreed ex-parte against one Shiv Kumar on 30-3-1999 on usual terms as to execution of the sale deed qua the agreement to sell on which the suit was founded. Compliance with the decree dated 30- 3-1999 remaining undone, the decree holder filed an execution application under Order 21 Rule 22 CPC. Objections thereon were filed by the petitioners stating to be the purported co-owners, with the judgment debtor, of the immovable property to be conveyed under the decree dated 30-3-1999 and submitting that the agreement to sell on which the decree rested was without their consent and hence the decree based thereon un-executable to their detriment. In support of the objections photo copies of four documents (1.registered will dated 29-1-1998; 2.registered adoption deed dated 10-11-1998; 3.registered release deed dated 10-11-1993 and 4.registered will dated 11-12-1992) were filed with the objections. Subsequently certified copies of documents in issue are stated to have been placed before the trial court with an application under Section 65 of the Evidence Act praying that secondary evidence in respect of the aforesaid four documents be allowed. On the decree holder contesting the applications under Section 65 of the Evidence Act, by the impugned order dated 20-10- 2016, they were dismissed by the trial court. In so doing it held that the preconditions for taking the documents in issue on record as secondary evidence, as required under Section 66 of the Evidence Act, were not made out. The trial court further noted that the applications were not supported by any affidavit nor detailed loss of original of the documents in issue. Aggrieved, the objectors now challenged the trial court's orders dated 20-10-2016 in these petitions. 3. Mr. Tarun Mishra for the objectors submitted that the four documents registered before the jurisdictional registrar partook the character of public documents as defined under Section 74(2) of the Evidence Act. Aggrieved, the objectors now challenged the trial court's orders dated 20-10-2016 in these petitions. 3. Mr. Tarun Mishra for the objectors submitted that the four documents registered before the jurisdictional registrar partook the character of public documents as defined under Section 74(2) of the Evidence Act. Their certified copies were secondary evidence under Section 65(e) of the Evidence Act, and hence liable to be admitted without anything more. He submitted that the four documents in issue being registered, there could also not be any question of their authenticity. The said documents were relevant to the rights of the objectors and their opposition to the execution of the decree dated 30-3-1999. Hence secondary evidence in regard thereto ought to have been allowed. The impugned order dated 20-10-2016 holding to the contrary is mechanical, unjust and wholly unsustainable, submitted Mr. Tarun Mishra. 4. Mr. J.P. Gupta, for the respondent decree holder (decree holder) submitted that the objectors are the wife and daughter of the judgment debtor Shiv Kumar. They are misusing the court processes at the judgment debtor's instance, who for the last 19 years has on one count or the other obstructed the execution of the final decree dated 30-3-1999. Mr. J.P. Gupta submitted that even on merits the objectors have no case. In the application under Section 65 of the Evidence Act no averment as to how the four documents in issue, all to the purported benefit of the objectors, were lost by them has been made. Nor was it stated as to what was the occasion for making the documents' photocopies and when, where and by whom the photocopies were made. Mr. J.P. Gupta submitted that the argument now raised before this court of the said documents being certified copies obtained from the Sub Registrar's office and hence being admissible as secondary evidence under Section 65(e) of the Evidence Act was never raised before the Executing court. Now as an afterthought the argument cannot be permitted in this petition under Article 227 of the Constitution of India which confers only supervisory jurisdiction on this court. In its supervisory jurisdiction this court cannot entertain an argument not made before the court below. Mr. Now as an afterthought the argument cannot be permitted in this petition under Article 227 of the Constitution of India which confers only supervisory jurisdiction on this court. In its supervisory jurisdiction this court cannot entertain an argument not made before the court below. Mr. J.P. Gupta, submitted without prejudice to the above that in any event a copy of private document as all the four documents in issue are with the Sub Registrar's office does not partake the character of a public document. Mr. J.P. Gupta drew the attention of this court to Section 74(1) of the Evidence Act, which inter alia defines a public document as "documents forming the acts, or records of the acts--(i) of the sovereign authority, (ii) of official bodies and tribunals, and (iii) of public officers, legislative, judicial and executive of any part of India or of the Commonwealth) or of a foreign country. And to section 74(2) which provides that Public records kept in any state of private documents" are public document. He submitted that it is only the entry regarding a private document made in public record is a public document and a certified copy thereof alone is a public document. Contrarily a photo copy of a private document retained in public record will not partake the character of a public document. The certified copies of the four documents in issue are only the copies with the Sub Registrar and not stated to be certified copies of the statutory record drawn in original. It was submitted that the original deeds registered in fact must have been returned to the beneficiaries as required under Section 61(2) of the Registration Act, 1908 and the registering authority retaining a photocopy thereof. The said photocopy of the original with the registering authority cannot be treated as a primary evidence, a certified copy whereof can be covered by Section 65(e) of the Evidence Act to be per se admissible as secondary evidence under Section 65(e) of the Evidence Act. And therefore before the certified copy of such a photocopy with the Sub Registrar can be admitted as secondary evidence it requires that the preconditions set out in Section 65(c) of the Evidence Act are to be satisfied in regard thereto. And the trial court has held as a finding of fact that it was not so in the instant case. And the trial court has held as a finding of fact that it was not so in the instant case. The impugned order therefore warrants no interference, submitted Mr. J.P. Gupta. 5. Heard counsel for the parties and perused the impugned order dated 20-10-2016 passed by the Executing court. 6. The decree for specific performance under execution is one of 30-3-1999. The objectors are the wife and daughter of the judgment debtor who has earlier had without success his innings of objection to the decree's execution. The objections by his wife and daughter were belatedly filed in the year 2011 and 2017 respectively. The originals of the documents in issue without question must have been returned to the objectors or others after registration in terms of Section 61(2) of the Registration Act, 1908. All the original documents in issue relate to a time after the agreement to sell dated 21-1-1974 on which the suit for specific performance was decreed. It was not stated in the application under Section 65 of the Evidence Act in issue when and how the originals were lost. Instead in the course of objections to the execution of the decree dated 30-3-1999, the photocopies of documents were first filed without stating when they were made from the original and who made and compared them with the original. No affidavit in support of the application was filed. Subsequently certified copies of the documents in issue were obtained from the Sub Registrar's office and filed but not stated or asserted that they fall within Section 65(e) of the Evidence Act as they were copies of the original of the record maintained in his office amounting to a public document as defined under Section 74(2) of the Evidence Act. The trial court in the circumstances found that the objectors' applications under Section 65 of the Evidence Act were wholly without merit for failing to aver and assert compliance of Section 66 of the Evidence Act and also for absence of affidavit supporting the applications. A new case under Section 65(e) of the Evidence Act is now sought to be made out before this court asserting that the certified copies of the private documents obtained from the Sub Registrar's office are admissible per se in evidence under Section 65(e) of the Evidence Act without anything more. 7. I find that the argument of Mr. A new case under Section 65(e) of the Evidence Act is now sought to be made out before this court asserting that the certified copies of the private documents obtained from the Sub Registrar's office are admissible per se in evidence under Section 65(e) of the Evidence Act without anything more. 7. I find that the argument of Mr. J.P. Gupta against allowing a new case being set up in a petition under Article 227 of the Constitution of India wholly tenable. Indeed Article 227 of the Constitution of India confers supervisory and corrective not original jurisdiction on this court. Only a case set up before the court below, decision on which is capricious or vitiated by perversity or error of jurisdiction can be corrected by this court in its supervisory jurisdiction. A new case not agitated before the trial court cannot be considered by this court in its jurisdiction under Article 227 of the Constitution of India. To do so would be to exercise of original jurisdiction and hence wholly impermissible. The petitioners objectors' argument based on Section 65(e) of the Evidence Act on the premise that certified copies of the private documents i.e. registered will dated 11-12-1992 and 29-1-1998 as also the registered release deed dated 10-11-1993 and registered adoption deed dated 10-11-1998 issued by the registering authority are that of public documents and hence per se admissible under Section 65(e) of the Evidence Act is thus liable to be rejected on this ground alone. 8. On the merits of the case, it is on record that the petitioners objectors did not aver or establish before the Executing Court that the preconditions set out in Section 66 of the Evidence Act were satisfied and that original of the documents in issue were lost. No affidavit was filed in support of the applications. It was not stated when, why and in what circumstances the photocopies of the documents first submitted before the Executing Court were made and by whom. This court in Hukmi Chand Mosun Vs. Kushal Chand Duggad, (2017) AIR Raj. 215 has held generally on the requirement of proof being essentially by primary evidence and only on strict compliances statutorily provided for, by secondary evidence. It was held as under:- "7. This court in Hukmi Chand Mosun Vs. Kushal Chand Duggad, (2017) AIR Raj. 215 has held generally on the requirement of proof being essentially by primary evidence and only on strict compliances statutorily provided for, by secondary evidence. It was held as under:- "7. It is trite that under the Evidence Act 1872 facts have to be proved by primary evidence and secondary evidence is only an exception to the rule. For the exception aforesaid to apply, foundational facts have to be supplied to the trial court's satisfaction and preconditions for leading secondary evidence fulfilled. The Apex Court in the case of M.Chandra Vs. M.Thangamuthu and Ors, (2010) 9 SCC 712 has held that secondary evidence cannot be allowed only for reason of permission merely being sought. Permission can only be granted on the Court being satisfied that absence of primary evidence is not attributable to the applicant himself. In the case of H. Siddiqui (dead) by LRs Vs. A. Ramalingam, (2011) 4 SCC 240 the Apex Court reiterated that where original documents are not produced without as plausible reason and factual foundation for laying secondary evidence not established it is not permissible for the court to allow a party to adduce secondary evidence. In Para 12 it was held as under: 12. 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. 8. In Smt. J. Yashoda Vs. K. Shobha Rani, (2007) 5 SCC 730 the Apex Court held that to be entitled to lead secondary evidence it is necessary for the party seeking such indulgence to prove existence and execution of the original document. A three Judge Bench of the Apex Court in the case of Ashok Dulichand Vs. 8. In Smt. J. Yashoda Vs. K. Shobha Rani, (2007) 5 SCC 730 the Apex Court held that to be entitled to lead secondary evidence it is necessary for the party seeking such indulgence to prove existence and execution of the original document. A three Judge Bench of the Apex Court in the case of Ashok Dulichand Vs. Madahavlal Dube & Anr, (1975) 4 SCC 664 held in Para 7: 7. There was also no other material on the record to indicate that the original document was in the possession of respondent No.1. The appellant further failed to explain as to what were the circumstances under which the photostat copy was prepared and who was in possession of the original document at the time its photostat was taken. Respondent No.1 in his affidavit denied being in possession of or having anything to do with such a document. The photostat copy appeared to the High Court to be not above suspicion. In view of all the circumstance, the High Court came to the conclusion that no foundation had been laid by the appellant for leading secondary evidence in the shape of the photostat copy. We find no infirmity in the above order of the High Court as might justify interference by this Court. 9. In the case of U. Sree Vs. U. Srinivas, (2013) 2 SCC 114 the Apex Court has held that refusal of the existence of the document by the opposite party in a trial in an application under Order 11, 12 and 14 CPC moved by the other is by itself not a reason for permitting the leading of secondary evidence without anything more. Nawab Singh, (1999) AIR SC 1668 states that suspicion as to the secondary evidence should not lead to dismissal of an application under Section 65 of the Evidence Act. It does not however say that secondary evidence should be recklessly permitted without strict scrutiny by the Court. The scrutiny has to be strict as for any exception to apply. Secondary evidence being admitted is an exception to the rule of proving facts by primary evidence. It does not however say that secondary evidence should be recklessly permitted without strict scrutiny by the Court. The scrutiny has to be strict as for any exception to apply. Secondary evidence being admitted is an exception to the rule of proving facts by primary evidence. Besides Nawab Singh was a judgment rendered by two judges as against Ashok Dulichand, (1975) AIR SC 1748 rendered by a three judge Bench much prior where it was held that overall suspicious circumstances qua a document sought to be admitted in evidence as secondary evidence can lead to dismissal of an application under Section 65 of the Evidence Act. Reliance by Mr. Rajat Ranjan on the judgment in the case of Mst. Bibi Aisha and Ors, (1969) AIR SC 253 is misplaced as the said case related to a matter under Section 65 (1) of the Evidence Act and not Section 65 (a) thereof as in the instant case. Further in Mst. Bibi Aisha and Ors. the document in issue therein was admitted to exist. Not so here. 10. In the context of the dominant view in law aforesaid as evident from the various judgments of the Apex Court, it is evident that the application for, leading secondary evidence qua the agreement dated 28-6-2006 on basis of a photocopy filed by the tenant was rightly dismissed by the trial court. The circumstances in which the purported photocopy of the alleged agreement dated 28-6-2006 was made were not even adverted to in the application. It was not stated as to in whose possession the original was when the photocopy was made, where when and by whom it was made, as also the purpose of the alleged original being photocopied. It is also extremely relevant to note that the purported agreement dated 28.06.2006 was between one JKJ and Sons Jewellers and the landlord and does not even refer to the tenant. It was not stated in the application under Section 65 of the Evidence Act as to in what manner the tenant was concerned with the purported agreement or that in what circumstances, despite being beneficial to the said JKJ and Sons is as evident on its reading was the agreement dated 28.06.2006 in possession of the landlord who had denied it. As recorded by the trial court, aside of the casual nature of the cryptic application under Section 65 of the Evidence Act by the tenant, it was belated and filed in 2016 in an eviction petition of 2006 at the stage of the tenant's cross-examination after a hiatus of 10 years in an eviction petition required by the Rajasthan Rent Control Act, 2001 particularly Section 15(5) thereof albeit directory to be concluded within 240 days of service of the petition on the opposite party." 9. It would also be appropriate to hold that secondary evidence can only be of documents made from the original. In the instant case the originals of the registered wills, registered release deed as also the registered adoption deed must necessarily have been returned to the executants/ beneficiaries as provided for by Section 61(2) of the Registration Act, 1908. Photocopies of such documents kept with the Sub Registrar cannot be termed the originals. Such photocopies with the Sub Registrar cannot therefore partake the character of public documents under Section 74 of the Evidence Act. The public record qua such documents registered would be the entries which are the original/ primary ones in regard thereto in the statutory records of the transactions kept in the Sub Registrar's office. The registers aforesaid being primary evidence of a public record, their certified copies would be covered by Section 65(e) of the Evidence Act. Such certified copies of the entries made in the statutory record of the Sub Registrar were not in issue before the Executing court nor are before this court. 10. The Apex Court in Gurmukh Ram Madan Vs. Bhagwan Das Madan, (1998) 7 SCC 367 has held that certified copies of registered deeds are not public documents. In the case of Paramananda Sahu Vs. Babu Sahu, 1970 36 CLT 1211 the Division Bench of the High Court of Orissa, in respect of Section 74(2) of the Evidence Act, has held that "what is sought to be proved by production of the certified copy is not any original entry, but copy of a document, the original of which must be in the custody of either the executant or some other person. Such a document was held to be not admissible in evidence only on production of its certified copy from the registration office. Such a document was held to be not admissible in evidence only on production of its certified copy from the registration office. It follows from the DB judgment of the Orissa High Court referred above that to be admissible as secondary evidence the essential preconditions of the Evidence Act had to be made out. 11. In the case of Gopal Das Vs. Sri Thakurji, (1943) AIR PC 83 the Privy Council refused to accept the argument as the one agitated in the case at hand. It was held that since the original receipt of 1881 must have been returned to the party (see Sub.s.2 of Section 61, Registration Act, 1908) a certified copy thereof from the registering authority cannot partake the character of a public document. The sequitur to my considered view would thus be that a certified copy of a document not the original with the Registering Authority cannot be covered by Section 65(e) of the Evidence Act. And for allowing even a certified copy thereof as secondary evidence it would be necessary to satisfy the preconditions set out in Section 66 of the Evidence Act. Admittedly the petitioners neither made out a case under Section 65(a) or (c) of the Evidence Act nor under Section 66 thereof as has been found by the trial court and in regard to which counsel for the petitioners before this court did not even attempt to make a contest. 12. Reliance by counsel for the petitioner on the judgment of this court in the case of Gopinath Educational & Welfare Society Vs. Rajendra Singh Shekhawat (HUF), (2016) AIR Raj. 106 is of little avail as in that case the Single Judge distinguished the judgment of Apex Court in the case of Gurmukh Ram Madan Vs. Bhagwan Das Madan, (1998) 7 SCC 367 on peculiar facts which are absent in the instant case. And even otherwise, I am disinclined to tinker with a pure proposition of law enunciated by the Apex Court. A legal proposition a bare statement of law by the Apex Court may or may not attract to the fact of a case, and on that count not applied to a particular case, but there can be on principle no variance thereof. A legal proposition a bare statement of law by the Apex Court may or may not attract to the fact of a case, and on that count not applied to a particular case, but there can be on principle no variance thereof. Resultantly the certified copies of the four documents detailed earlier in this judgment did not warrant being allowed as secondary evidence in support of the petitioners' objections to the decree dated 30-3-1999. The Executing court acted wholly within its jurisdiction and for good reason in dismissing the objectors' applications under Section 65 of the Evidence Act. 13. The upshot of the aforesaid discussion is that the petitions are without force and quite baseless. Dismissed.