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2024 DIGILAW 324 (HP)

Sanatan Dharam Pratinidhi Sabha v. State of H. P.

2024-05-07

SUSHIL KUKREJA, TARLOK SINGH CHAUHAN

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JUDGMENT : SUSHIL KUKREJA, J. 1. The appellant herein, which is an Educational Institution, namely Sanatan Dharam Education Society Baijnath, District Kangra, H.P. being plaintiff before the learned Single Judge (hereinafter referred to as “the plaintiff”) has maintained Civil Suit No. 5 of 2008, under Section 26 read with Order 7, Rules 1 and 2 CPC for recovery of amount of Rs. 2,40,00,000/- alongwith interest and also for mandatory injunction directing the defendants/respondents (hereinafter referred to as “the defendants”) to hand over original FDR No. RDW 551515, Punjab National Bank, Baijnath in the sum of Rs. 5,00,000/- in favour of GGDSD College, Baijnath, which was pledged by the society (plaintiff), lying with defendant No. 5 and declaring that plaintiff alone is entitled to receive the amount of FDR with accrued interest to the exclusion of the defendants. 2. The plaintiff preferred the instant appeal under Clause 10 of the High Court of Delhi Rules, as applicable to the High Court of Himachal Pradesh, against the order dated 25.07.2019, passed by learned Single Judge, in OMP No. 245 of 2015, in Civil Suit No. 5 of 2008, whereby application under Section 65 of the Indian Evidence Act, which was filed by the defendants, for proving the resolution dated 28.09.2002, by way of secondary evidence on behalf of the State of H.P. was allowed, with a prayer to allow the appeal with costs and to set-aside the order passed by the learned Single Judge. 3. The facts giving rise to the instant appeal are that the defendants, being applicants, maintained an application, i.e. OMP No. 245 of 2015, under Section 65 of Evidence Act read with Section 151 of CPC for proving the resolution dated 28.09.2002 by way of secondary evidence on behalf of the defendants/State of H.P. in the aforesaid civil suit, which was filed by the plaintiff. 4. As per the defendants, at the request of the plaintiff, GGSD College, Baijnath was taken over by the government and the Management Committee, vide its resolution dated 28.09.2002, gave its consent to take over the college and its infrastructure. Despite best efforts of the respondents the original record, including the record of the resolution dated 28.09.2002, could not be traced and ultimately the defendants in their written statement stated that record of the college was untraced/misplaced. Despite best efforts of the respondents the original record, including the record of the resolution dated 28.09.2002, could not be traced and ultimately the defendants in their written statement stated that record of the college was untraced/misplaced. It was further pleaded by the defendants that while recording the evidence of Shri Ajay Lakhanpal, Principal, Pt. Sant Ram College Baijnath, photo copy of resolution dated 28.09.2002 was produced, which was passed by the Management Committee of Goswami Ganesh Dutt Sanatan Dharam Sabha College, Baijnath. The defendants made another attempt to trace the aforesaid resolution in original when Shri Ajay Lakhanpal produced the photocopy of the said resolution and a three members committee was constituted on 22.06.2015 for the said purpose. As per the defendants, it is unclear whether the original record of resolution dated 28.09.2002 was handed over to the government or not by the management and it seems that the record remained in possession of the management till date. The plaintiff was one of the members in the management, who was opposing the taking over of the college by the government. Despite best efforts, only the photocopy of resolution dated 28.05.2015 was traced and when the defendants examined the witnesses, the aforesaid resolution was marked in the statement of DW Shri Ajay Lakhanpal. The three member committee, after verifying the entire record, submitted its report on 26.06.2015, stating that the file which pertains to taking over of GGSD College was not traceable in the records till date. As per the defendants, resolution dated 28.09.2002 is to be proved in accordance with Evidence Act, by leading secondary evidence only, as the original resolution is misplaced and is not traceable despite the best efforts made by the officials of the defendants. The defendants averred that the suit was filed by the trust and Dr. Shiv Kumar was the trustee in Sanatan Dharam Pratinidhi Sabha, Baijnath, who was authorized to file the suit by the trust. Dr. Shiv Kumar was also one of the members in the Management Committee of privately managed GGSD College, Baijnath, and he also signed the resolution dated 28.09.2002. The defendants further averred that Dr. Shiv Kumar in his cross-examination admitted that resolution dated 28.09.2002 was passed by the management to take over the GGSD College, Baijnath, thus the aforesaid resolution is necessary to be proved by way of secondary evidence. The defendants further averred that Dr. Shiv Kumar in his cross-examination admitted that resolution dated 28.09.2002 was passed by the management to take over the GGSD College, Baijnath, thus the aforesaid resolution is necessary to be proved by way of secondary evidence. The defendants also averred that they want to examine witnesses Shri Sunil Gupta, Dr. R.C. Verma and Dr. V.K. Sayal, who had signed the resolution dated 28.09.2002, in presence of other members, including the plaintiff to prove the resolution dated 28.09.2002 Mark-X. As per the defendants, the resolution dated 28.09.2002 is required to be proved by way of secondary evidence, as the primary evidence is untraced/misplaced. Lastly, a prayer was made that the application be allowed and the defendants (applicants) be permitted to lead secondary evidence to prove the resolution dated 28.09.2002. 5. The plaintiff (non-applicant), by filing reply to the application, contested the same and in the reply it has been averred that the application is not maintainable. As per the plaintiff, all records were taken over by the defendants, through its Administrator and finally on 04.01.2007, after taking over all the records, the aforesaid college was completely taken over by the government. The plaintiff has no concern with the aforesaid college, after taking over of the same by the government in 2007, thus the application is frivolous and is just an attempt to harass the plaintiff. As per the plaintiff, no record qua the resolution dated 28.9.2002 is available with the management. It was further averred in the reply that the application is not maintainable at this belated stage, as the suit was filed in the year 2008 and since then several years have passed. The defendants have filed written statement and various documents, thus the defendants have no locus standi to file the instant application at this belated stage. As per the plaintiff, it is within the knowledge of the defendants that the plaintiff had no control over the aforesaid college after taking over of the same by the defendants, through administrator, during the month of September, 2002, and also thereafter permanently w.e.f. 04.01.2007. The plaintiff also averred that the report, vide Annexure R-1, which was placed on record, is an afterthought story, as at no point of time the plaintiff had joined the investigation, thus the same is not relevant. In fact, no resolution was ever passed by the management. The plaintiff also averred that the report, vide Annexure R-1, which was placed on record, is an afterthought story, as at no point of time the plaintiff had joined the investigation, thus the same is not relevant. In fact, no resolution was ever passed by the management. Lastly, a prayer was made to dismiss the application. 6. On 16.03.2016, the learned Single Judge framed the following issues for determination and adjudication: “1. Whether there are sufficient grounds to allow the application filed under Section 65 of the Indian Evidence Act as alleged? Onus upon applicants. 2. Whether applicants have no cause of action to file the application as alleged? Onus upon non-applicant. 3. Relief.” The applicants/defendants led evidence in support of the application and examined three witnesses (AWs). Ultimately, the learned Single Judge allowed the application of the defendants, hence the instant appeal. 7. We have heard the learned Senior Counsel for the appellant, learned Additional Advocate General for respondents No. 1 to 4/State, learned counsel for respondent No. 5 and carefully examined the entire record. 8. The learned Counsel for the appellant submitted that the photo copy of the resolution dt.28.09.2002 should not have been accepted as a secondary evidence particularly when there was absolute denial about the passing of the resolution. He further submitted that photo copy without any revelation of the source is not permissible to be tendered as secondary evidence. 9. On the other hand, learned Additional Advocate General/learned counsel for the respondents/State supported the order passed by the learned Single Judge and they have submitted that in view of the facts and circumstances of the present case the learned Single Judge had rightly allowed the application by permitting the applicants/defendants to lead secondary evidence on the resolution in question. 10. The Hon’ble Supreme Court has held in a catena of judgments that the party has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. In this context, it would be relevant to refer to Sections 63 and 65 of the Evidence Act, which read as under: “63. Secondary Evidence - Secondary Evidence means and includes: (1) certified copies given under the provisions hereinafter contained. (2) copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy and copies compared with such copies. Secondary Evidence - Secondary Evidence means and includes: (1) certified copies given under the provisions hereinafter contained. (2) copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy and copies compared with such copies. (3) copies made from or compared with the original. (4) counterparts of documents as against the parties who did not execute them. (5) oral accounts of the contents of a document given by some person who has himself seen it. Illustrations: (a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original. (b) A copy, compared with a copy of a letter, made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original. (c) A copy transcribed from a copy, but afterwards compared with the original is secondary evidence; but the copy not so compared is not secondary evidence of the original although the copy from which it was transcribed was compared with the original. (d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine copy of the original, is secondary evidence of the original. 65. Secondary evidence may be given of the existence, condition of 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 be easily move-able. (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 be easily move-able. (e) when the original is a 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 in 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 is 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 (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is 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.” 11. The perusal of the record of the case clearly indicates that in the written statement, it has nowhere been pleaded that the Management Committee had passed the resolution dated 28.09.2002 giving consent to take over the college, including its infrastructure. Further when the plaintiff appeared in the witness-box, as CW-1, he was never confronted with the resolution in question dated 28.09.2002. On a perusal of the stand taken by the plaintiff in the reply to the application in question, it is quite clear that it had denied the passing of any resolution dated 28.09.2002 by the management. The copy of the resolution dated 28.09.2002 which has been filed in tendering the secondary evidence is neither a certified copy nor a true copy of the original. 12. The secondary evidence would include categories mentioned in Clauses (1) to (5) to Section 63 and if the conditions embodied in Section 65(a) to (g) of the Evidence Act exist, secondary evidence relating to document can be given. 12. The secondary evidence would include categories mentioned in Clauses (1) to (5) to Section 63 and if the conditions embodied in Section 65(a) to (g) of the Evidence Act exist, secondary evidence relating to document can be given. However, in the facts and circumstances of the present case, the photocopy of the resolution dated 28.09.2002 cannot be admitted in secondary evidence because on a bare perusal of the application under Section 65 of the Evidence Act, nowhere it has been so stated therein that the photocopy was made from the original and it was compared with original. The name of the person, who had obtained the photocopy by mechanical process, has also not been mentioned in the application and further who compared the same with original, his name is also neither mentioned nor any affidavit in that regard has been filed. 13. In this context, it would be relevant to refer to the decision rendered by the Hon’ble Supreme Court in the case of Kalyan Singh vs. Smt. Chhoti and Others, (1990) 1 SCC 266 , wherein it has been held as under: “25. The High Court said, and in our opinion very rightly, that Ex. 3 could not be regarded as secondary evidence. Section 63 of the Evidence Act mentions five kinds of secondary evidences. Clauses (1), (2) and (3) refer to copies of documents; Clause (4) refers to counterparts of documents and Clause (5) refers to oral accounts of the contents of documents. Correctness of certified copies referred to in Clause (1) is proper evidence. A certified copy of a registered sale deed may be produced as secondary evidence in the absence of the original. But in the present case Ex.3 is not a certified copy. It is just an ordinary copy. There is also no evidence regarding contents of the original sale deed. Ex. 3 cannot, therefore, be considered as secondary evidence. The Appellate Court has a right and duty to exclude such evidence.” 14. In J. Yashoda vs. K. Shobha Rani, (2007) 5 SCC 730 , the Hon’ble Supreme Court observed that only when conditions as prescribed in Section 65 are satisfied, documents can be admitted as secondary evidence. The relevant portion of the aforesaid judgment is reproduced as under: “9. The Appellate Court has a right and duty to exclude such evidence.” 14. In J. Yashoda vs. K. Shobha Rani, (2007) 5 SCC 730 , the Hon’ble Supreme Court observed that only when conditions as prescribed in Section 65 are satisfied, documents can be admitted as secondary evidence. The relevant portion of the aforesaid judgment is reproduced as under: “9. The rule which is the most universal, namely, that the best evidence the nature of the case will admit shall be produced, decides this objection. That rule only means that, so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it. Section 65 deals with the proof of the contents of the documents tendered in evidence. In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. Under Section 64, documents are to be provided (sic proved) by primary evidence. Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within or other of the cases provided for in the section. In Ashok Dulichand vs. Madahavlal Dube, (1976) 4 SCC 664, it was inter-alia held as follows: 7...........There was also no other material on the record to indicate that the original document was in the possession of Respondent 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 photograph was taken. Respondent 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 circumstances, 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. The photostat copy appeared to the High Court to be not above suspicion. In view of all the circumstances, 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. 10. The admitted facts in the present case are that the original was with one P. Srinibas Rao. Only when conditions of section prescribed in Section 65 are satisfied, documents can be admitted as secondary evidence. In the instant case clause 9(a) of Section 65 has not been satisfied. Therefore, the High Court’s order does not suffer from any infirmity to warrant interference.” 15. The Supreme Court in United India Insurance Co. Ltd. vs. Anbari and Others, 2000 (10) SCC 523 , while dealing with the photocopy of licence of a driver held that photocopy was not sufficient to prove that driver had a valid licence. The relevant portion of the aforesaid judgment is reproduced as under: “3. Learned counsel for the appellant submitted that the point regarding validity of the driver's licence was raised by the appellant before the Motor Accidents Claims Tribunal and the Tribunal in accepting photocopy of a document purporting to be the driver's licence and recording a finding that the driver had a valid licence, has committed a grave error of law. He also submitted that the High Court has not dealt with the said contentions of the appellant and without giving any reason has dismissed the appeal. The Tribunal and also the High Court have failed to appreciate that production of a photocopy was not sufficient to prove that the driver had a valid licence when the fact was challenged by the appellant and genuineness of the photocopy was not admitted by it.......” 16. Now reverting to the facts of the case in hand, as per the applicants/state, during the recording of the evidence of Shri Ajay Lakhanpal, Principal, Pandit Sant Ram College Baijnath, he produced a photocopy of the resolution dated 28.09.2002 and an attempt was made by the State to trace out the record qua the taking over of the erstwhile privately managed GGSD College Baijnath and a three member committee was constituted on 22.06.2015 to locate/trace the original record. It has also been averred in the application that the photocopy of the resolution was found in the record of the College on 28.05.2015 when the State of H.P. examined its witnesses and the same was marked as Mark-X, in the statement of DW-4 Shri Ajay Lakhanpal. The perusal of the resolution shows that its copies have also been endorsed to Secretary/Director (Education) to the Government of H.P. and Vice Chancellor, H.P. University, however, it has been averred in the application that the same could not be traced in the Record Section of the H.P. Secretariat. It appears that no attempt has been made to trace the same from the office of the Vice Chancellor, H.P. University, as there is no averment in the application that the State had made any attempt to trace out the same from the office of the Vice Chancellor, H.P. University. So far as the applicability of Clause (2) of Section 63 Evidence Act, it can be said that by some mechanical process, a photocopy of original resolution was obtained, but, there cannot be any surety of its correctness and accuracy in absence of any supporting material on record. In this regard there is no averment in the application that the photocopy which has been obtained by mechanical process was never tempered and it ensures its accuracy. There is also no averment in the application that the photocopy was compared with the original and it is an accurate photocopy of the original and further by not filing any affidavit of person who obtained the said photocopy is on record, the authenticity and accuracy of the photocopy of the purported resolution is surrounded by dark clouds of doubt. We are of the considered view that the photocopy is neither a primary evidence nor secondary because the party is required to prove when and where the photocopy was taken and it is the same and exact copy of the original. When a photocopy without any reasonable source has been filed, it is not permissible to tender the same in secondary evidence. For a photocopy of a document to be received in an evidence under the head of secondary evidence, not only the satisfaction of Section 65 is required, but simultaneously it is also required that its photocopy was compared with the original in terms of section 63(3) of the Evidence Act. 17. For a photocopy of a document to be received in an evidence under the head of secondary evidence, not only the satisfaction of Section 65 is required, but simultaneously it is also required that its photocopy was compared with the original in terms of section 63(3) of the Evidence Act. 17. Since the resolution that has been sought to be tendered as secondary evidence is neither a certified copy nor a true copy of the original, in our considered view, it does not meet with the requirement of Section 65 of the Evidence Act. In the absence of any proof and requirement of law not being satisfied, we are of the considered opinion that the impugned order passed by the learned Single Judge suffers from patent illegality as such we find merit in the instant appeal filed by the plaintiff and the same is allowed. Resultantly, the impugned order dated 25.07.2019, passed by the learned Single Judge of this Court, in OMP No. 245 of 2015, is quashed and set-aside. 18. Needless to say that any observation made hereinabove has only been made for the purpose of disposal of the present application and same shall have no affect on the merits of the case, which shall be adjudicated on its own merits. 19. The appeal, so also the pending applications, if any, stand disposed of in the aforesaid terms.