Punjab-Haryana High Court
Pawan Chawla vs M/S Amrit Handloom House & Ors on 25 August, 2008
CR No.5993 of 2007 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR No.5993 of 2007
Date of Decision: 25.08.2008
Pawan Chawla ..Petitioner
Vs.
M/s Amrit Handloom House & Ors. ..Respondent
Coram: Hon'ble Mr. Justice Vinod K.Sharma
Present: Mr.Sameer Rathaaur, Advocate,
for Mr.Sumeet Goel, Advocate,
for the petitioner.
Mr.Sandeep Chhabra, Advocate,
for respondent No.1.
Vinod K.Sharma,J. (Oral)
Learned counsel for the petitioner states that respondents No.2 and 3 are merely proforma respondents and therefore, their service be dispensed with. Ordered accordingly.
Present revision petition is directed against the order passed by the learned trial court vide which application moved by the petitioner for leading secondary evidence has been ordered to be dismissed.
The petitioner moved an application for leading secondary CR No.5993 of 2007 2 evidence for proving challan No.3217 dated 25.3.2002 of Fabric Matty 4050-00 of Rs.4,25,250 and challan No.3239 dated 5.5.2001 of Fabric Matty 8337-75 of Rs.8,75,464/- on the ground that the defendant-petitioner had retuned the goods material to the plaintiff vide above mentioned challans. It was claimed that the original challans were kept in possession of Sham Lal an employee of the defendant-petitioner. About 6 months back the employee had left the service of the defendant and when the defendant tried to locate the original challans which were in possession of Sham Lal the same could not be located; hence it was prayed that photo copies of the said challans be permitted to be placed on record.
Learned trial court came to the conclusion that though at the time of filing of written statement original challans were not produced and only the photo copies were filed. Learned court further observed that facts were within the knowledge of the defendants However, present application was moved when the last opportunity was given. It was also observed by the learned trial court that in the written statement the defendant petitioner never pleaded that originals were taken away by Sham Lal. Learned trial court came to the conclusion that in the absence of the originals, photo copies could not be allowed to be proved by way of secondary evidence. It was observed that the present application was mala fide.
Learned counsel for the petitioner contended that the impugned order cannot be sustained as the photo copies of the challans were placed on record and case was also made out showing the existence of the original with Sham Lal and thus, the contention of the learned counsel for the petitioner was that the condition as envisaged for leading secondary CR No.5993 of 2007 3 evidence was duly met out and the court below wrongly rejected the application.
However, reading of the application moved by the petitioner for secondary evidence shows that no ground whatsoever for leading secondary evidence by way of proving photo copies was made out. It has also not been disclosed as to why the originals were not placed on record when the written statement was filed nor it has been disclosed as to under what circumstances photo copies were got prepared from originals.
Hon'ble Supreme Court in the case of Smt.J.Yashsoda Vs. Smt. KShobha Rani 2007 (2) RCR (Civil) 840 has been pleased to lay down as under:-
"6. In order to consider rival submissions it is necessary to take note of Sections 63 and 65 (a). Sections 63 and 65(a) reads 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;
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 CR No.5993 of 2007 4 some person who has himself seen it.
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 snot produce it."
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 by primary evidence. Section 65, however, permits secondary evidence to be given to the existence, condition or CR No.5993 of 2007 5 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 one or other of the cases provided for in the Section . In Ashok Dulich and V. Madahavlal Dube and Another [1975(4) SCC 664, it was inter alia held as follows:
"After hearing the learned counsel for the parties, we are of the opinion that the order of the High Court in this respect calls for no interference. Accordingly to clause
(a) of Section 65 of 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 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 of any person legally bound to produce it, and when, after the notice mentioned in Section 6 such person does not produce it, Clauses (b) to (g) of Section 65 specify some other contingencies wherein secondary evidence relating to a document may be given, but we are not concerned with those clauses as it is the common case of the parties that the present case is not covered by CR No.5993 of 2007 6 those clauses. 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 No.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 incase respondent no.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 coy 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 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 No.1 in his affidavit denied being in possession appeared to the High Court to be not above suspicion. In view of all the circumstances, the High Court to be not above suspicion. In view of all the CR No.5993 of 2007 7 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 interfere by this court."
It would be noticed that the order passed by the learned trial court is in consonance with the law laid down by Hon'ble Supreme Court and does not call for any interference by this court.
No merit.
Dismissed.
25.8.2008 (Vinod K.Sharma) rp Judge