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Himachal Pradesh High Court · body

2018 DIGILAW 2126 (HP)

Mohan Lal v. Rajinder Kumar Puri

2018-11-30

SANDEEP SHARMA

body2018
JUDGMENT Sandeep Sharma, J. - Being aggrieved and dissatisfied with the order dated 25.09.2018, passed by learned Civil Judge, Court No.II, Una, District Una, H.P., in CMA No.1658 of 2018, whereby an application under Section 65 of the Indian Evidence Act (for short the ''Act'') having been filed by the respondent (hereinafter referred to as the plaintiff), seeking therein permission to lead secondary evidence, came to be allowed, petitioner (hereinafter referred to as the defendant), has approached this Court in the instant proceedings, praying therein to set1 aside the impugned order dated 25.9.2018., referred hereinabove. 2. Having carefully perused the material available on record, this Court is not persuaded to agree with Mr. B.N. Sharma, learned counsel representing the defendant that impugned order passed by the learned Court below is not inconformity with the provisions contained under Section 65 of the Act, rather this Court is of the view that impugned order is strictly in conformity with the provisions contained under Section 65 of the Act. In the application at hand, plaintiff has specifically averred that defendant had entered into agreements dated 1.7.1995, 30.12.1995 and 10.9.1996 and these document were duly entered in the register of Petition Writer namely, Mangat Ram at Serial No.225 dated 1.7.1995, at Serial No.382, dated 30.12.1995 and Serial No.137, dated 10.9.1996. Plaintiff also claimed before the Court below that earlier he was in possession of these documents, but since original documents have been misplaced in the house of the plaintiff at the time of shifting of articles, he is entitled to prove the same by way of leading secondary evidence in terms of the provisions contained under Section 65 of the Act. 3. Section 65 of the Act, deals with the situations/ circumstances under which secondary evidence relating to documents can be given to prove the existence, condition or contents of the documents. If Section 65 is read in its entirety, it reveals that secondary evidence can be led if original of documents intended to be produced by secondary evidence is 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. Party intending to produce secondary evidence requires to establish for the non-production of primary evidence. Party intending to produce secondary evidence requires to establish for the non-production of primary evidence. Unless, it is established that the original documents is lost or destroyed or is being deliberately withheld by the party in respect of that document sought to be used, secondary evidence in respect of that document cannot be accepted. 4. In this regard, reliance is placed upon the judgment rendered by the Hon'' ble Apex Court in Rakesh Mohindra versus Anita Beri and others , (2016) 16 SCC 483 , wherein it has been held as under:- "14. Section 65 of the Act deals with the circumstances under which secondary evidence relating to documents may be given to prove the existence, condition or contents of the documents. For better appreciation Section 65 of the Act is quoted herein below:- "65. Cases in which secondary evidence relating to documents may be given: Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:- (a) When the original is shown or appears to be in the possession or power-of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it; (b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest; (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; (d) when the original is of such a nature as not to be easily movable; (e) when the original is public document within the meaning of section 74; (f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force 40[India] to be given in evidence ; (g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in court and the fact to be proved it the general result of the whole collection. In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents." 15. The preconditions for leading secondary evidence are that such original documents could not be produced by the party relied upon such documents in spite of best efforts, unable to produce the same which is beyond their control. The party sought to produce secondary evidence must establish for the non-production of primary evidence. Unless, it is established that the original documents is lost or destroyed or is being deliberately withheld by the party in respect of that document sought to be used, secondary evidence in respect of that document cannot accepted. 16. The High Court in the impugned order noted the following :(Anita Beri vs. Rakesh Mohindra, SCC Online HP 4258 para-9) "9. There is no averment about Ext. DW-2/B in the Written Statement. The Written Statement was filed on 19.2.2007. DW-2/B infact is only a photocopy. The plaintiffs are claiming the property on the basis of a registered will deed executed in her favour in the year 1984. It was necessary for the defendant to prove that in what manner the document dated 24.8.1982 was executed. The defendant while appearing as AW-1 has admitted in his cross-examination that except in his affidavit Ext. AW-1/A, he has not mentioned in any document that the letter of disclaimer was executed by Justice late Sh. Tek Chand in his presence. The statement of DW-2 does not prove that Ext. DW-2/A, ever existed. DW-2 Sh. Gurcharan Singh, has categorically admitted in his cross-examination that he has not brought the original of Ext. DW- 2/B. He has also admitted that on Ext. DW-2/B, the signatures of P.C. Danda were not legible. Volunteered that, those were not visible. The learned trial Court has completely misread the oral as well as the documentary evidence, while allowing the application under Section 65 of the Indian Evidence Act, 1872, more particularly, the statements of DW2 Gurcharan Singh and DW-3 Deepak Narang. DW-2/B, the signatures of P.C. Danda were not legible. Volunteered that, those were not visible. The learned trial Court has completely misread the oral as well as the documentary evidence, while allowing the application under Section 65 of the Indian Evidence Act, 1872, more particularly, the statements of DW2 Gurcharan Singh and DW-3 Deepak Narang. The applicant has miserably failed to comply with the provisions of Section 65 of the Indian Evidence Act, 1872. The learned trial Court has erred by coming to the conclusion that the applicant has taken sufficient steps to produce document Ext. DW- 2/B." 17. The High Court, following the ratio decided by this Court in the case of J. Yashoda vs. Smt. K. Shobha Rani , (2007) AIR SC 1721 and H. Siddiqui (dead) by lrs. vs. A. Ramalingam , (2011) AIR SC 1492, came to the conclusion that the defendant failed to prove the existence and execution of the original documents and also failed to prove that he has ever handed over the original of the disclaimer letter dated 24.8.1982 to the authorities. Hence, the High Court is of the view that no case is made out for adducing the secondary evidence. 18. The witness DW-2, who is working as UDC in the office of DEO, Ambala produced the original GLR register. He has produced four sheets of paper including a photo copy of letter of disclaimer. He has stated that the original documents remained in the custody of DEO. In cross-examination, his deposition is reproduced hereinbelow:- "xxxxxxxx by Sh. M.S. Chandel, Advocate for the plaintiff No.2. I have not brought the complete file along with the record. I have only brought those documents which were summoned after taking up the documents from the file. As on today, as per the GLR, Ex.DW2/A, the name of Rakesh Mohindra is not there. His name was deleted vide order dated 29.8.2011. I have not brought the original of Ex.DW-2/B. It is correct that Ex.DW-2/D does not bear the signatures of Sh. P.C. Dhanda. Volunteered.: These are not legible. Ex.DW-2/C is signed but the signatures are not leible. On the said document the signatures of the attesting officer are not legible because the document became wet. I cannot say whose signatures are there on these documents. On Ex.DW-2/E the signatures at the place deponent also appears to have become illegible because of water. Volunteered.: These are not legible. Ex.DW-2/C is signed but the signatures are not leible. On the said document the signatures of the attesting officer are not legible because the document became wet. I cannot say whose signatures are there on these documents. On Ex.DW-2/E the signatures at the place deponent also appears to have become illegible because of water. Ex.DW-2/F also bears the faded signatures and only Tek Chand is legible on the last page. It is incorrect to suggest that the last page does not have the signatures of the attesting authority. Volunteered: These are faded, but not legible. The stamp on the last paper is also not legible. There is no stamp on the first and second page. In our account, there is no family settlement, but only acknowledgement of family settlement. I do not know how many brothers Rakesh Mohindra has. It is correct that the original of Ex.DW-2/H does not bear the signatures of Sh. Abhay Kumar. I do not know whether Sh. Abhay Kumar Sud and Rakesh Mohindra are real brothers. The above mentioned documents were neither executed nor prepared in my presence. It is incorrect to suggest that the above mentioned documents are forged. It is incorrect to suggest that because of this reason I have not brought the complete file." 19. In Ehtisham Ali v. Jamma Prasad,1921 SCCOnLine(PC) 65 a similar question came for consideration as to the admissibility of secondary evidence in case of loss of primary evidence. Lord Phillimore in the judgment observed:(SCC Online PC) "It is, no doubt, not very likely that such a deed would be lost, but in ordinary cases, if the witness in whose custody the deed should be, deposed to its loss, unless there is some motive suggested for his being untruthful, his evidence would be accepted as sufficient to let in secondary evidence of the deed." 20. It is well settled that if a party wishes to lead secondary evidence, the Court is obliged to examine the probative value of the document produced in the Court or their contents and decide the question of admissibility of a document in secondary evidence. At the same time, the party has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. At the same time, the party has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. It is equally well settled that neither mere admission of a document in evidence amounts to its proof nor mere making of an exhibit of a document dispense with its proof, which is otherwise required to be done in accordance with law. 5. In the case at hand,plaintiff by placing on record extract of register of the Petition Writer has duly established existence of the agreements in question, hence learned court below rightly concluded that presence of documents intended to be proved by leading secondary evidence, is proved from the relevant extract of register of deed writer and also from the pleadings of the plaintiffs. Now,question whether these entries in the register of deed writer are forged or not can only be decided at the later stage when both the parties would be afforded an opportunity of leading evidence and at this stage, Court is not required to go into the merits of the case. At this Stage,Court is only required to go into the question with regard to existence of documents intended to be proved by leading secondary evidence. 6. In the instant case, plaintiff by successfully placing on record relevant extract of register of petition writer proved the existence of document purported to be lost by him during shifting of articles. 7. Thus, in view of the foregoing reasons, this Court does not find any occasion to interfere with the impugned order dated 25.9.2018 passed by the learned trial Court, which has been assailed in the present petition. The impugned order does not suffer from any illegality and has been passed in accordance with law. Accordingly, the present petition, being devoid of any merit, is dismissed alongwith pending application(s), if any.