Himachal Pradesh High Court
__________________________________________________________ vs Hem Raj & Others on 10 September, 2019
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
Civil Revision No.147 of 2018
.
Date of Decision: 10th September, 2019
__________________________________________________________
Gagan Singh & another ........ Petitioners
Versus
Hem Raj & others .....Respondents
Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 Yes.
For the Petitioners: Mr. Ajay Sharma, Senior Advocate with
Mr. Amit Jamwal, Advocate.
For the Respondents: Mr. Vijender Katoch, Advocate.
__________________________________________________________
Sandeep Sharma, Judge (oral):
Instant Civil Revision Petition filed under Section 115 of the Code of Civil Procedure, is directed against the order dated 16.8.2017 passed by learned Civil Judge (Junior Division), Indora, District Kangra, H.P., in CMA No.233 of 2017, whereby an application having been filed by the petitioners (hereinafter referred to as the plaintiffs) under Section 65 of the Indian Evidence Act 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 29/09/2019 04:10:59 :::HCHP 2( for short 'Act'), seeking therein permission to prove sale deed dated 15.12.1986 by way of secondary evidence, came .
to be rejected.
2. Briefly stated facts, as emerge from the record are that the plaintiffs filed a suit, seeking therein declaration that the plaintiffs and defendant No.2 are owners in possession of the suit land, detail whereof is given in the plaint, on the basis of the sale deed executed by defendant No.1 in favour of the plaintiffs and defendant No.2 on 8.12.1986. In the suit, as referred hereinabove, plaintiff also sought consequential relief of injunction.
3. Defendant No.1 by way of written statement refuted the claim of the plaintiffs. He also filed counter claim (Annexure P3).
4. During the pendency of the suit, an application under Section 65 of Indian Evidence Act (Annexure P4) came to be filed on behalf of the plaintiffs, averring therein that original copy of sale deed is not traceable and same is ::: Downloaded on - 29/09/2019 04:10:59 :::HCHP 3 presumed to be in possession of defendant No.1. Plaintiff further averred in the application that original document is .
out of reach of the plaintiffs and they are unable to produce the same for adducing the evidence and as such, they may be permitted to prove the same on the basis of certified copy of the sale deed by way of secondary evidence. Plaintiff categorically averred in the application that they have obtained the certified copy of the sale deed dated 15.12.1986 from the office of Sub Registrar, Indora and want to adduce the evidence by way of secondary evidence.
5. Aforesaid application filed by the plaintiffs came to be opposed on behalf of defendant No.1, who specifically denied that the original sale deed is in his custody.
Defendant No.1 in reply to the application sated that as per the averments contained in para6 of the plaint, plaintiff himself has mentioned that the applicant/plaintiff had given the copy of original sale deed to the Revenue Officials for entrance and attestation of mutation. Defendant No.1 also averred in the reply to the application that the plaintiff has ::: Downloaded on - 29/09/2019 04:10:59 :::HCHP 4 filed the present suit on the basis of certified copy of the sale deed and as such, he has no right to adduce the evidence on .
the basis of the alleged certified copy, when he specifically failed to produce the original or certified copy of the same.
6. Learned Court below vide order dated 16.8.2017 dismissed the application having been filed by the plaintiffs primarily on the ground that it was incumbent upon the plaintiffs to issue notice to the opposite party before filing application under Section 65 of the Act. In support of aforesaid finding learned Court below placed reliance upon the judgment rendered by Hon' ble High Court of Punjab and Haryana in case titled Surinder Kaur Vs. Mehal Singh and others, 2014 (1) RCR (Civ) 467 as well as case titled Hari Singh Vs. Shish Ram, 2002(4) RCR (Civ) 830, wherein it has been held that before a party is permitted to adduce secondary evidence to show that the documents is in existence, it is necessary to issue notice under Section 66 of the Act to the party in whose custody the document is kept.
::: Downloaded on - 29/09/2019 04:10:59 :::HCHP 5In the aforesaid background, plaintiffs have approached this Court in the instant proceedings with a prayer to set aside .
the impugned order dated 16.8.2017 and to permit them to prove the documents in question by way of secondary evidence.
7. Having heard learned counsel representing the parties and perused the material available on record, this Court is not in agreement with the reasoning assigned by the learned Court below while dismissing the application filed by the plaintiffs under Section 65 of the Act.
8. Careful perusal of the averments contained in the plaint (Annexure P1), clearly reveals that plaintiffs have categorically averred that plaintiffs and defendants after getting the sale deed executed, gave copy of original sale deed to concern revenue authorities, so that mutation on the basis of the same is attested in their favour.
9. In para4 of the application filed under Section 65 of the Act, plaintiffs while seeking permission to prove ::: Downloaded on - 29/09/2019 04:10:59 :::HCHP 6 the sale deed in question by way of secondary evidence has specifically averred that they have obtained certified copy of .
the above document from the office of Sub Registrar, Indora and want to lead the same in evidence by way of secondary evidence. It is not the case of the plaintiffs that the document sought to be proved by way of secondary evidence is in the possession of the respondents/defendants and as such, reasoning assigned by the learned Court below that it was incumbent upon the applicants/plaintiffs to issue notice to the opposite party to produce the original sale deed is totally contrary to the pleadings adduced on record by the respective parties.
10. 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. Provision of Section 65 of the Act, if read in its entirety, it clearly suggests that secondary evidence can be led if the original document has been destroyed or lost, or when the party offering evidence of its ::: Downloaded on - 29/09/2019 04:10:59 :::HCHP 7 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 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. 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 ::: Downloaded on - 29/09/2019 04:10:59 :::HCHP 8 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 r 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."
::: Downloaded on - 29/09/2019 04:10:59 :::HCHP 915. 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 nonproduction 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 para9) "9. There is no averment about Ext. DW2/B in the Written Statement. The Written Statement was filed on 19.2.2007. DW2/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 AW1 has admitted in his crossexamination that except in his affidavit Ext. AW1/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 DW2 does not prove that Ext. DW2/A, ever existed. DW2 Sh. Gurcharan Singh, has categorically admitted in his crossexamination that he has not brought the original of Ext. DW 2/B. He has also admitted that on Ext. DW2/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 ::: Downloaded on - 29/09/2019 04:10:59 :::HCHP 10 Indian Evidence Act, 1872, more particularly, the statements of DW 2 Gurcharan Singh and DW3 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, AIR 2007 SC 1721 and H. Siddiqui (dead) by lrs. vs. A. Ramalingam, AIR 2011 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 DW2, 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.DW 2/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.DW2/B. It is correct that ::: Downloaded on - 29/09/2019 04:10:59 :::HCHP 11 Ex.DW2/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.DW2/E the signatures at the place deponent also appears to have become illegible because of water. Ex.DW2/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.DW2/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 SCC OnLine 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, ::: Downloaded on - 29/09/2019 04:10:59 :::HCHP 12 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. 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."
11. Reliance is also placed upon the judgment rendered by Hon'ble Apex Court in H. Siddiqui (dead) by Lrs. Versus A. Ramalingam, AIR 2011 SC 1492, wherein it has been held as under:
"10. 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 ::: Downloaded on - 29/09/2019 04:10:59 :::HCHP 13 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."
12. Further the Hon'ble Apex Court in U.Sree versus U. Srinivas, (2013) 2 SCC 114, has held as under: "13. Before we dwell upon the tenability of the conclusions of desertion and mental cruelty, we think it condign to deal with the submission whether the photostat copy of the letter alleged to have been written by the wife to her father could have been admitted as secondary evidence. As the evidence on record would show, the said letter was summoned from the father who had disputed its existence. The learned Family Court Judge as well as the High Court has opined that when the person is in possession of the document but has not produced the same, it can be regarded as a proper foundation to lead secondary evidence.
14. In this context, we my usefully refer to the decision in Ashok Dulichand v. Madahavalal Duber,11(1975)4 SCC 664, wherein it has been held that:(SCC p.666, para7) "7.....according to clause (a) of Section65 of the Indian Evidence Act, secondary evidence may be given of the existence, condition or contents of a document 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.' ::: Downloaded on - 29/09/2019 04:10:59 :::HCHP 14 Thereafter, the Court addressed to the facts of the case and opined thus:(Ashok Dulichand case,11(1975) 4 SCC p.667, para 7) .
"7. In order to bring his case within the purview of clause(a) of Section 65, the appellant filed application on July 4, 1973, before Respondent 1 was examined as a witness, praying that the said respondent be ordered to produce the original manuscript of which, according to the appellant, he had filed photostat copy. Prayer was also made by the appellant that in case Respondent 1 denied that the said manuscript had been written by him, the photostat copy might be got examined from a handwriting expert. The appellant also filed affidavit in support of his applications. It was, however, nowhere stated in the affidavit that the original document of which the photostat copy had been filed by the appellant was in the possession of Respondent No.1. 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 photograph was taken. Respondent 1 in his affidavit denied being in possession of or having anything to do with such a document.
Be it noticed, in this backdrop, the High Court had recorded a conclusion that no foundation had been laid by the appellant for leading secondary evidence in the shape of the photostat copy and this Court did not perceive any error in the said analysis."
13. Careful perusal of aforesaid exposition of law clearly suggest that where original documents are not ::: Downloaded on - 29/09/2019 04:10:59 :::HCHP 15 produced at any point of time, nor any factual foundation is laid for giving secondary evidence, it is not permissible for .
the Court to allow a party to adduce secondary evidence, meaning thereby secondary evidence relating to the contents of a document is inadmissible, until the non production of the original is accounted for.
14. In the case at hand, plaintiffs by averring in the plaint that the plaintiffs and defendants after getting the sale deed executed gave the copy of original sale deed to the revenue authorities have duly established the existence of sale deed sought to be proved by way of secondary evidence.
Hence, finding recorded by learned Court below that plaintiffs have failed to show that document sought to be proved by way of secondary evidence is not in existence. In para2 of the written statement filed by defendant No.1, sale deed, as referred hereinabove, has been termed to be not legally valid and genuine document, but there is no specific denial, if any, to its existence. Question whether sale deed sought to be proved by way of secondary evidence is forged ::: Downloaded on - 29/09/2019 04:10:59 :::HCHP 16 document or not can only be decided at later stage when both the parties would be afforded an opportunity for .
leading evidence. At this stage, while considering the application filed under Section 65 of the Act, Court is not required to go into the merits of the case, rather it is only required to go into the question with regard to existence of secondary evidence.
r to the document intended to be proved by way of leading
15. As has been taken note hereinabove, applicants/ plaintiffs in para Nos. 6 and 7 of the plaint have categorically averred that they both plaintiffs and defendants after getting the sale deed executed gave the copy of original sale deed to the concern revenue authorities, but such assertion has not been categorically refuted by defendant No.1. Defendant No.1 has simply stated that he is owner in possession of the suit land. Certified copy of sale deed sought to be proved by way of secondary evidence stands duly placed alongwith the application and authenticity and genuineness of which never came to be ::: Downloaded on - 29/09/2019 04:10:59 :::HCHP 17 challenged by the defendants in their reply to the application. In the judgment referred hereinabove, Court .
has categorically observed that if parties 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. Hon'ble Apex Court has further held 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. Even in the case at hand, if application for proving the document is allowed no prejudice, if any, would be caused to the defendants, who otherwise in any eventuality would get an opportunity to rebut the same.
16. In the case at hand, if the averments contained in the application are read in its entirety, it clearly reveal that the plaintiffs sought permission of the Court to prove the sale deed dated 15.12.1986, by leading secondary ::: Downloaded on - 29/09/2019 04:10:59 :::HCHP 18 evidence. As has been noticed herein above, factum with regard to existence of sale deed dated 15.12.1986, never .
came to be refuted specifically, rather on the basis of the same defendants have applied for partition proceedings on the basis of same sale deed.
17. At this stage, provisions of S.66 of the Act may be usefully extracted herein below:
"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, 46[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;::: Downloaded on - 29/09/2019 04:10:59 :::HCHP 19
(3) When it appears or is proved that the adversary 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."
18. Careful perusal of aforesaid provisions of law suggests that the very purpose of notice under S.66 is only to put other party to notice to produce the document, in whose possession or power, document is, so as to afford opportunity to the party by producing same to secure best evidence of its defence. Though, in the case at hand, there is no specific averment, if any, in the application that document sought to be proved by way of secondary evidence is in the possession of the defendants, rather it has been stated that document in question was handed over to the revenue authorities for attesting the mutation, but even otherwise, mere filing of the application under Section 65 of the Act, was sufficient notice to the defendants to produce ::: Downloaded on - 29/09/2019 04:10:59 :::HCHP 20 the document in question, if it was in their possession. Non issuance of notice under Section 66 of the Act could not be a .
reason for the Court below to reject the application, especially when it was not the specific case of the plaintiffs that document sought to be proved by way of secondary evidence is in possession of the defendants. Hence, this Court has no hesitation to conclude that the plaintiffs by placing on record certified copy of the sale deed in question has proved the existence of document purported to be given by them to the revenue authorities for attesting the mutation.
19. In view of the detailed discussion made herein above and law laid down by the Hon'ble Apex Court (supra), the present petition is allowed and order dated 16.8.2017, passed by the learned Civil Judge (Junior Division), Indora, District Kangra, H.P., in CMA No.233/17 is set aside.
Application filed by the plaintiffs for leading secondary evidence under Section 65 of the Act, is allowed.
::: Downloaded on - 29/09/2019 04:10:59 :::HCHP 2120. Pending applications, if any, are disposed of.
Interim direction, if any, is vacated. Record, if received, be .
sent back forthwith.
(Sandeep Sharma),
Judge
10th September, 2019
(shankar)
r to
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