Gauhati High Court
Page No.# 1/3 vs Md Dalu Mia And 8 Ors on 10 March, 2025
Author: Malasri Nandi
Bench: Malasri Nandi
Page No.# 1/30
GAHC010201542017
2025:GAU-AS:2516
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA/302/2017
MD ALIMUDDIN
S/O LATE DARBEJ ALI, R/O VILL. SALEKURA, MOUZA JANIA, DIST.
BARPETA, ASSAM, PIN 781314
VERSUS
MD DALU MIA and 8 ORS
2:MISS ABISKAR BEGUM
3:MISS MALEKA KHATUN @ SALEKA KHATUN
4:MISS MASIA KHATUN
5:MISS HAMIDA KHATUN
NO. 1 IS THE SON AND NO. 2
3
4 AND 5 ARE THE DAUGHTERS OF LATE SIRAJ MIAH @ SIRAJ ALI
6:ON THE DEATH OF KALAM MIA HIS HEIRS AND LEGAL
REPRESENTATIVES
JELEMAN KHATUN
7:DELOWAR HUSSAIN
8:MONU ALI
Page No.# 2/30
NO. 6A IS THE WIFE AND NO. 6B AND 6C ARE THE SONS OF LATE KALAM
MIA
RESPONDENT NO. 6 B AND 6C ARE MINORS AND REPRESENTED BY
THEIR MOTHER NO. 6 A 9:MUSTT. KANCHAN NESSA W/O LATE SIRAJ MIA RESPONDENT NO. 1 TO 7 ARE R/O VIL. SONAPUR KADANG MOUZA JANIA P.S. BAGHBAR DIST. ASSAM PIN 78130 Advocate for the Petitioner : MR.G BHARADWAJ, MR.A C SARMA,MR.J AHMED,MS.M AHMED,MS.S R SAIKIA Advocate for the Respondent : MR.A ROSHIDR- 1-7, MS.M R DEVI(R- 1-7),MRS.R CHOUDHURY(R- 1-7) BEFORE HONOURABLE MRS. JUSTICE MALASRI NANDI JUDGMENT & ORDER (CAV) Date : 10-03-2025 Heard Mr. J. Ahmed, learned counsel for the appellant. Also heard Ms. R. Choudhury, learned counsel for the respondents.
2. The appellant has preferred this second appeal u/s 100 of CPC, challenging the judgment and decree passed by the learned Civil Judge, Barpeta in Title Appeal No.08/2014 dated 16.05.2017, affirming the impugned judgment and decree passed by the learned Munsiff No.1, Barpeta in Title Suit No.325/2010 dated 13.12.2013.
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3. The appeal was admitted on the following substantial question of law-
a) Whether the learned trial courts below erred in law in interpreting section 76 of the Indian Evidence Act by holding that the certified copy of the sale is inadmissible in evidence.
b) Whether the learned lower appellate court erred in law in not formulating points for determination as provided under Order XLI Rule 31 of the Code of Civil Procedure.
4. The appellant being plaintiff filed a title suit vide no. T.S. 325/2010 before the learned Court of Munsiff No.1, Barpeta stating that the plaintiff purchased 3 Bighas 2 Kathas 10 Lechas of land covered by Dag No.257, Periodic Patta No.40 vide Registered Sale Deed No.57/1996 dated 05.01.1996 from Siraj Ali @ Siraj Mia, son of late Hasimuddin of village - Sonapur (Kadang).
5. However, for some personal reason, the plaintiff did not mutate the said land in his favour but he was possessing and enjoying the said land without any disturbance from any corner. After the death of Siraj Mia, his heirs i.e. the defendants in Title Suit No.325/2010, illegally obtained mutation of the entire lands of Siraj Mia including the suit land purchased by the plaintiff/appellant by misleading the Revenue Authority.
6. On being informed, the plaintiff/appellant filed a petition before the concerned Circle Officer to register a case under Section 145 Cr.PC. Subsequently, the defendants started to create problem in peaceful possession of the suit land occupied by the plaintiff. Particularly, on 30.11.2010, the defendants threatened to dispossess the plaintiff from the suit land. Through the Title Suit vide No.325/2010, the plaintiff has prayed to pass decree declaring Page No.# 4/30 the right, title, interest and confirmation of possession of the plaintiff over the suit land.
7. The defendants/respondents contested the suit by filing a written statement. It was contended that the defendants are in exclusive possession of the suit land since 11.04.1975. It was pleaded that Siraj Ali @ Siraj Mia never sold any land to the plaintiff/appellant and never executed any sale deed in respect of the suit land and that is why, during lifetime of Siraj Mia, the plaintiff/appellant never tried to get his name mutated in the Revenue Records.
8. Though the defendants filed counter claim seeking dismissal of the suit and decree for declaration of their right, title and interest and confirmation of possession over the suit property as legal heirs of Siraj Mia but during trial at the stage of the evidence of the plaintiff side, they remained absent without any step and even did not cross-examine the witness of the plaintiff side. As such, the counter claim was dismissed and cross-examination of the plaintiff side was treated as declined. Hence, only the suit filed by the plaintiff was proceeded further. The plaintiff filed their written statement against the counter claim reiterating the same facts as stated in the plaint and prayed for dismissal of the counter claim.
9. The learned trial court dismissed the case of the plaintiff on the ground that as per provision of Section 65 of the Evidence Act, the certified copy of the Sale Deed No.57/1996 cannot be received as evidence of title of the plaintiff in respect of his claim of purchasing the suit land.
10. As per judgment of the trial court which reads as follows -
"The plaintiff's claim over the suit land is based on registered sale Page No.# 5/30 deed no.57/1196 dated 05.01.1996, which is a certified copy of the sale deed and marked as Exhibit 1, which is a secondary evidence. As per Section 64 of Evidence Act, the best evidence is the primary evidence which should be produced before the Court. However, Section 65 of the Evidence Act says that in certain circumstances, secondary evidences may be given but the party producing secondary evidence must offer proper explanation for non- production of the primary evidence. In the instant suit, there was no explanation either in the plaint or in the evidence of the witnesses as to why the original registered sale deed has not been produced."
And accordingly, the suit was dismissed.
11. On appeal preferred by the plaintiff before the First Appellate Court, the learned Civil Judge, also took the same view which is reproduced as follows -
" As we go through the evidence on record as described by the plaintiff we find that the plaintiff has produced the certified copy of sale deed no.57/1996 and marked as Exhibit 1. The original sale deed is not tendered in evidence. A certified copy of sale deed being secondary evidence, the plaintiff should have placed the original sale deed, which is primary evidence as required u/s 64 of the Evidence Act. We do not give any explanation either in the plaint or in the evidence of the plaintiff's witnesses for non- production of the original sale deed-the primary evidence. Under such circumstances, Exhibit 1 cannot be received in evidence. As such, it can be stated that plaintiff has failed to establish his title over the suit Schedule B land."
Page No.# 6/30 Hence, the learned Civil Judge dismissed the appeal affirming the judgment of the trial court.
12. Learned counsel for the appellant has argued that when the certified copy of the sale deed was exhibited before the trial court, no objection was made by the respondents side at that time. The settled position of law is that objection can be raised when the evidence is standard but not after the document has been admitted in evidence and marked as an Exhibit. In the present case, the certified copy of the sale deed in question was exhibited and admitted in evidence by trial court without any objection from the respondent's side. Therefore, the objection raised before the High Court in second appeal cannot be taken into consideration.
In support of his submission, learned counsel for the appellant has relied on the following case law -
a) (2003) 8 SCC 752 (R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami & V.P Temple and another)
13. In response, learned counsel for the respondents has argued that the appellant has exhibited the sale deed vide Exhibit 1 before the trial court which is a secondary evidence and there was no explanation from the side of the appellant as to why the plaintiff/appellant has failed to produce the original document and there was no attempt to call for the original sale deed or the concerned register. It is also submitted that no official witness was called to prove the sale deed. It is further submitted that sale deed being the basis of the claim, it was incumbent upon the plaintiff/appellant to prove the sale deed in Page No.# 7/30 accordance with law and therefore, the interference for any further scrutiny by this Court in exercise of powers u/s 100 of the Code of Civil Procedure is uncalled for.
14. By referring the judgment of this Court vide (2024) O Supreme (GAU) 595 (Md. Alauddin and others Vs. Bidyut Bhushan Das) , learned counsel for the respondent has pointed out that it was held in the said case that burden of proof casts upon the plaintiff u/s 110 of the Indian Evidence Act was not discharged in accordance with law. In the case of Venkatachala Gounder (Supra), though a photocopy of an order of the charity commissioner was accepted as proof by the Hon'ble Supreme Court, it was recorded in paragraph 16 of the said judgment that the party had given proper explanation as to why only the photocopy was tendered. Admittedly, in the case in hand, no explanation was offered by the plaintiff/appellant in this regard. As such, learned counsel for the respondent has prayed for dismissal of the second appeal.
15. Having heard the arguments on behalf of the learned counsel for the parties and on perusal of the trial court records and upon considering the case on its entirety and appreciating the evidence on record on its preponderance of probabilities, it reveals that the plaintiff/appellant has not produced the original sale deed and Exhibit 1- is the certified copy of the sale deed. It is argued on behalf of the respondent that without laying foundation for leading secondary evidence, the certified copy of sale deed ought not to have been believed, which is not admissible in law.
16. A perusal of the plaint averments would reveal that the plaintiff has not laid foundation in the plaint itself as to why he has relied on the certified copy of Page No.# 8/30 the sale deed. There is no explanation either in the plaint or in the evidence-in- affidavit of the plaintiff that why he has failed to produce the original sale deed before the trial court. The only aspect to be taken into consideration is, whether Exhibit 1 - secondary evidence is found to be relevant and admissible to prove the case of the plaintiff that there was execution of the sale deed.
17. In every suit, facts in issue are to be proved by evidence. Evidence are of two kinds -
i) Primary evidence
ii) Secondary evidence
18. Section 3 of the Indian Evidence Act (For short, 'the Act') defines "fact" as follows -
"Fact"- 'Fact' means and includes -
1. anything state of things, or relation of things, capable of being perceived by the senses;
2. any mental condition of which any person is conscious.
19. "Facts in issue" is defined as follows-
"Facts in issue" - The expression "facts in issue" means and includes - Any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature or extent of any right, liability or disability, asserted or denied in any suit or proceeding, necessarily follows.
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20. Evidence must be relevant in proving "facts" and "facts in issue". What is "relevant" is defined as follows -
"Relevant" - One fact is said to be relevant to another when the one is connected with other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts.
21. Facts in issue are also to be proved by document. What is "document" is defined as follows -
"Document" - Document means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used or which may be used, for the purpose of recording that matter."
22. Section 59 of 'the Act' defines "Proof of facts by oral evidence" as follows-
"Proof of facts by oral evidence" - All facts, except the contents of documents or electronic records, may be proved by oral evidence."
23. Section 62 of 'the Act' defines "Primary evidence" as follows -
"Primary evidence - Primary evidence means the document itself produced for the inspection of the Court."
24. Section 63 of 'the Act' defines "Secondary evidence" as follows -
"63. Secondary evidence means and includes -
1. certified copies given under the provisions hereinafter Page No.# 10/30 contained;
2. copies made from the original by mechanical processes which in themselves insure 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."
25. When evidence is proved to be relevant then that evidence is admissible. If evidence produced is irrelevant, is not admissible. All admissible evidence are relevant, but all relevant evidence are not admissible. Therefore, just because the evidence is found to be relevant that always cannot be said that it is admissible, but where evidence is found to be admissible, its relevance is to be proved.
26. What is secondary evidence is defined in Section 63 of 'the Act' as aforesaid. In the present case, Exhibit 1 is the certified copy of sale deed, therefore, whether relevant and admissible is to be considered. Order XIII Rule 3 of CPC defines as follows -
"3. Rejection of irrelevant or inadmissible documents -The Court may at any stage of the suit reject any document which it considers irrelevant or otherwise inadmissible, recording the grounds of such rejection."
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27. Order XIII Rule 6 of CPC stipulates as follows-
"6. Endorsements on documents rejected as inadmissible in evidence - Where a document relied on as evidence by either party is considered by the Court to be inadmissible in evidence, there shall be endorsed thereon the particulars mentioned in clauses (A), (B) and (C) of Rule 4, sub-rule (1), together with a statement of its having been rejected and the endorsement shall be signed or initialed by the Judge."
28. Therefore, where party tenders a certified copy or Photostat copy by claiming that it is secondary evidence, then Section 65 of 'the Act' shall be followed. Section 65 of 'the Act' deals with under what circumstances, secondary evidence can be led relating to documents.
29. Therefore, in the present case, Exhibit 1 is secondary evidence, the plaintiff desires to produce Exhibit 1 - secondary evidence. Therefore, while the party desires to produce secondary evidence, he has to lay foundation for what reasons he is going to lead secondary evidence, and then only the secondary evidence can be considered of its relevancy and admissibility, otherwise not.
30. In the case of Rakesh Mohindra Vs. Anita Beri and others , reported in (2016) 16 SCC 483, the Hon'ble Apex Court while dealing with the Evidence Act, was pleased to observe as follows -
"13. As a general rule, documents are proved by leading primary evidence. Section 64 of the Evidence Act provides that documents must be proved by the primary evidence except in cases mention in Section 65 of the Evidence Act. In the absence of primary evidence, documents can be proved by secondary evidence as contemplated under Section 63 of the Act which Page No.# 12/30 reads as under:-
"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 documents given by some person who has himself seen it.
Illustration:
(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 he 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.
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:-
Page No.# 13/30 "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 in 40 [India] to be given in evidence ;
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(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."
31. In the case of Rakesh Mohindra (Supra), it was also observed that -
"The pre-conditions 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 document 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.
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 Page No.# 15/30 be produced. It is equally well settled that neither mere admission of a document in evidence amounts to its proof nor mere marking of an exhibit of a document dispense with its proof, which is otherwise required to be done in accordance with law."
32. In M. Chandra vs. M. Thangamuthu, reported in (2010) 9 SCC 712, the Hon'ble Apex Court considered the requirement of Section 65 of the Evidence Act and held as under:-
"47. We do not agree with the reasoning of the High Court. It is true that a party who wishes to rely upon the contents of a document must adduce primary evidence of the contents, and only in the exceptional cases will secondary evidence be admissible. However, if secondary evidence is admissible, it may be adduced in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in another form. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It should be emphasized that the exceptions to the rule requiring primary evidence are designed to provide relief in a case where a party is genuinely unable to produce the original though no fault of that party."
33. Therefore, the secondary evidence cannot be tendered as a matter of routine, but must be in exceptional circumstances that too upon laying foundation about existing condition or contents of documents. The party who wishes to lead secondary evidence shall have to state why primary evidence is not possible and what are the compelling circumstances to lead secondary evidence. If the party wishes to lead secondary evidence shall have to lay foundation.
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34. Further, in the case of Smt. Yashoda Vs. Smt. Shobha Rani, reported in AIR (2007) SC 1721, while dealing with Section 63 and 65 of 'the Act', admissibility of secondary evidence of document where photocopies are produced. It was observed as follows:
"7. Secondary evidence, as a general rule, is admissible only in the absence of primary evidence. If the original itself is found to be inadmissible through failure of the party, who files it to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contents.
8. Essentially, secondary evidence is an evidence which may be given in the absence of that better evidence which law requires to be given first, when a proper explanation of its absence is given. The definition in Section 63 is exhaustive as the Section declares that secondary evidence "means and includes" and then follow the five kinds of secondary evidence.
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 of the existence, Page No.# 17/30 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 one or other of the cases provided for in the Section. In Ashok Dulichand Vs. Madahavlal Dube , it was inter alia held as follows:
"7. 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. According 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 66 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 those clauses. In order to bring his case within the purview of Clause (a) of Section 65, the appellant filed applications on July 4, 1973, before respondent No. 1 was examined as a witness, praying that the said Page No.# 18/30 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 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 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 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 circumstances, the High Court came to a 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."
35. What are the characteristics of laying foundation for leading secondary evidence may be summarized as follows in illustrative manner. The following circumstances are not exhaustive one but only can be considered as illustrative.
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(i) The party shall state in the pleadings either in the plaint or in the written statement why primary evidence is not able to be produced and why secondary evidence is tendered; or
(ii) The party shall depose in affidavit evidence in lieu of examination-in-chief under what circumstances he is going to lead the secondary evidence.
(iii) By filing an application making request to lead secondary evidence stating the reasons why leading secondary evidence is necessary.
36. Therefore, before tendering secondary evidence, laying foundation is sine- qua-non. Therefore, the condition for leading evidence stating reasons is essential why primary evidence is not available and before leading secondary evidence the party shall lay down foundation for leading secondary evidence and shall have to state under which custody the primary evidence is available or under what circumstances the party is not able to produce primary evidence before the Court. Therefore, the above stated criteria are the parameters of laying foundation for any secondary evidence as an illustrative. As stated above, the proposal of leading secondary evidence is to make the Court to get inspired the production of secondary evidence.
37. Further, in Kalia Vs. State of Madhya Pradesh, reported in (2013) 10 SCC 758, the Hon'ble Supreme Court has observed as follows:
"13. Section 65(c) of the Act 1872 provides that secondary evidence can be adduced relating to a document when the original has been destroyed or lost, or when the party offering Page No.# 20/30 evidence of its contents cannot, for any other reason, not arising from his own default, or neglect, produce it in reasonable time. The court is obliged to examine the probative value of documents produced in court or their contents and decide the question of admissibility of a document in secondary evidence. (Vide: H. Siddiqui Vs. A. Ramalingam and Rasiklal Manikchand Dhariwal Vs. M.S.S. Food Products ). However, the secondary evidence of an ordinary document is admissible only and only when the party desirous of admitting it has proved before the court that it was not in his possession or control of it and further, that he has done what could be done to procure the production of it. Thus, the party has to account for the non- production in one of the ways indicated in the section. The party further has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. When the party gives in evidence a certified copy/secondary evidence without proving the circumstances entitling him to give secondary evidence, the opposite party must raise an objection at the time of admission. In case, an objection is not raised at that point of time, it is precluded from being raised at a belated stage. Further, mere admission of a document in evidence does not amount to its proof. Nor, mere marking of exhibit on a document does not dispense with its proof, which is otherwise required to be done in accordance with law. (Vide Roman Catholic Mission Vs. State of Madras, Marwari Kumhar Vs. Bhagwanpuri Guru Page No.# 21/30 Ganeshpuri, R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami and V.P. Temple, Dayamathi Bai Vs. K.M.Shaffi and LIC Vs. Ram Pal Singh Bisen )."
38. In M. Chandra Vs. M. Thangamuthu (Supra), the Hon'ble Apex Court considered this aspect in detail and held as under:
"47. We do not agree with the reasoning of the High Court. It is true that a party who wishes to rely upon the contents of a document must adduce primary evidence of the contents, and only in the exceptional cases will secondary evidence be admissible. However, if secondary evidence is admissible, it may be adduced in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in another form. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It should be emphasized that the exceptions to the rule requiring primary evidence are designed to provide relief in a case where a party is genuinely unable to produce the original through no fault of that party.
37. Therefore, there are condition precedents, as enumerated in Section 65 of 'the Act' for leading secondary evidence. The Court must get inspired regarding the production of secondary evidence, and is duty bound to examine the probative value of the document of secondary evidence produced in Court and Page No.# 22/30 decide the question of admissibility of document of secondary evidence. Therefore, to enable the Court to appreciate the secondary evidence regarding its relevancy and admissibility, the party must state under what reasons and circumstances they are going to lead secondary evidence in absence of primary evidence. Therefore, this is the importance of laying foundation, as above stated. As in the proceedings of a suit, the best evidence can be produced normally is primary evidence; adducing the secondary is an exception. This exception to be exercised sparingly, but not as a routine. Therefore, the party desires to lead secondary evidence shall satisfy the Court regarding the secondary evidence. Otherwise, the Court is obliged to reject the evidence if not satisfied with the secondary evidence.
Therefore, it is burden on the party, who lead secondary evidence to lay the foundation. The other party has every right to rebut the secondary evidence in the manner known to law.
If the opposite party is successful in rebutting the secondary evidence about its origin, contents, authority from whom obtained, the party not able to state under whose custody the original document lies, etc., are found to be doubtful, then the secondary evidence can be rejected.
38. Considering the above principle of law made Page No.# 23/30 applicable in the present case on hand, admittedly Ex.P-1 is the Photostat copy of agreement of sale. It is secondary evidence."
39. Therefore, from the principal of law laid down as above stated the facts in issue are always proved by primary evidence. Secondary evidence is exception. What are secondary evidence are defined in Section 63 of the Act. As per clause (2) of Section 63 of the Act, copies made from the original by mechanical process which themselves ensure the accuracy of the copy, and copies compared with such original; is also secondary evidence. The copies made from the original by mechanical process is also photocopy/xerox copy. But the secondary evidence must ensure the accuracy of the copy and copies compared with such copies must inspire confidence of the Court. The process of laying foundation of tendering secondary evidence is enabling the Court to appreciate the document properly and such secondary evidence must inspire confidence of the Court that it is relevant and admissible. Therefore, while tendering secondary evidence if foundation is not laid down, then such secondary evidence cannot be admitted in the evidence; then the Court may reject it by making endorsement upon it, as per Order 13 Rule 3 r/w Rule 6 of CPC.
40. Coming to the question of second appeal, some judicial precedents are as follows -
In the case of Gurnam Singh Vs. Lehna Singh, reported in (2019) 7 SCC 641, the Hon'ble Supreme Court has held as under:
"13.1.The suspicious circumstances which were considered by the learned trial court are narrated/stated hereinabove. On re- appreciation of evidence on record and after dealing with each Page No.# 24/30 alleged suspicious circumstance, which was dealt with by the learned trial court, the first appellate court by giving cogent reasons held the will genuine and consequently did not agree with the findings recorded by the learned trial court. However, in second appeal under Section 100 of CPC, the High Court, by the impugned judgment and order has interfered with the judgment and decree passed by the first appellate court. While interfering with the judgment and order passed by the first appellate court, it appears that while upsetting the judgment and decree passed by the first appellate court, the High Court has again appreciated the entire evidence on record, which in exercise of powers under Section 100 of CPC is not permissible. While passing the impugned judgment and order, it appears that the High Court has not at all appreciated the fact that the High Court was deciding the second appeal under Section 100 of CPC and not first appeal under Section 96 CPC. As per the law laid down by this Court in a catena of decisions, the jurisdiction of the High Court to entertain second appeal under Section 100 of CPC after the 1976 Amendment, is confined only when the second appeal involves a substantial question of law. The existence of "a substantial question of law" is a sine qua non for the exercise of the jurisdiction under Section 100 of CPC. As observed and held by this Court in [Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar, (1999) 3 SCC 722], in a second appeal under Section 100 of CPC, the High Court cannot substitute its own opinion for that of the first appellate court, unless it finds that the conclusions drawn by Page No.# 25/30 the lower court were erroneous being:
(i) Contrary to the mandatory provisions of the applicable law;
or
(ii) Contrary to the law as pronounced by the Supreme Court;
or
(iii) Based on inadmissible evidence or no evidence.
It is further observed by this Court in the aforesaid decision that if the first appellate court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in second appeal. It is further observed that the trial court could have decided differently is not a question of law justifying interference in second appeal."
41. In the case of Narayana Gramani Vs. Mariammal, reported in (2018) 18 SCC 645, the Hon'ble Apex Court has held as under:-
"17. Sub-section (1) of Section 100 says that the second appeal would be entertained by the High Court only if the High Court is "satisfied" that the case involves a "substantial question of law".
Sub-section (3) makes it obligatory upon the appellant to precisely state in memo of appeal the "substantial question of law" involved in the appeal. Sub-section (4) provides that where the High Court is satisfied that any substantial question of law is Page No.# 26/30 involved in the case, it shall formulate that question. In other words, once the High Court is satisfied after hearing the appellant or his counsel, as the case may be, that the appeal involves a substantial question of law, it has to formulate that question and then direct issuance of notice to the respondent of the memo of appeal along with the question of law framed by the High Court. Sub-section (5) provides that the appeal shall be heard only on the question formulated by the High Court under sub-section (4). In other words, the jurisdiction of the High Court to decide the second appeal is confined only to the question framed by the High Court under sub-section (4). The respondent, however, at the time of hearing of the appeal is given a right under sub-section (5) to raise an objection that the question framed by the High Court under sub-section (4) does not involve in the appeal. The reason for giving this right to the respondent for raising such objection at the time of hearing is because the High Court frames the question at the admission stage which is prior to issuance of the notice of appeal to the respondent. In other words, the question is framed behind the back of respondent and, therefore, sub-section (5) enables him to raise such objection at the time of hearing that the question framed does not arise in the appeal. The proviso to sub-section (5), however, also recognizes the power of the High Court to hear the appeal on any other substantial question of law which was not initially framed by the High Court under sub-section (4). However, this power can be exercised by the High Court only Page No.# 27/30 after assigning the reasons for framing such additional question of law at the time of hearing of the appeal. (See [Santosh Hazari Vs. Purushottam Tiwari, (2001) 3 SCC 179] and [Surat Singh Vs. Siri Bhagwan, (2018) 4 SCC 562 : (2018) 3 SCC (Civ) 94])"
42. Under Order XLI, Rule 33 of C.P.C. reads as under:-
"33. "Power of Court of Appeal-The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees-
Provided that the Appellate Court shall not make any order under section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order."
43. In the case of R.S. Anjayya Gupta Vs. Thippaiah Setty, reported in (2019) 7 SCC 300 , the Hon'ble Apex Court has held as under:-
17. In a recent decision of this Court in U. Manjunath Rao Vs. U. Chandrashekar, (2017) 15 SCC 309 : (2018) 2 SCC (Civ) 682] , the Page No.# 28/30 Court after adverting [Santosh Hazari Vs. Purushottam Tiwari, (2001) 3 SCC 179], [Sarju Pershad Ramdeo Sahu Vs. Jwaleshwari Pratap Narain Singh, AIR 1951 SC 120], [Madhukar vs. Sangram, (2001) 4 SCC 756], [H.K.N. Swami Vs. Irshad Basith, (2005) 10 SCC 243] and [SBI Vs. Emmsons International Ltd., (2011) 12 SCC 174 : (2012) 2 SCC (Civ) 289] went on to observe :
''3. ... Thus, in the first appeal the parties have the right to be heard both on the questions of facts as well as on law and the first appellate court is required to address itself to all the aspects and decide the case by ascribing reasons."
In this context, we may usefully refer to Order 41 Rule 31 CPC which reads as follows:
''ORDER 41 Appeals from Original Decrees -
31. Contents, date and signature of judgment.--The judgment of the appellate court shall be in writing and shall state--
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled; and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring Page No.# 29/30 therein."
44. On a perusal of the said Rule, it is quite clear that the judgment of the appellate court has to state the reasons for the decision. It is necessary to make it clear that the approach of the first appellate court while affirming the judgment of the trial court and reversing the same is founded on different parameters as per the judgments of the Apex Court.
45. In Girijanandini Devi Vs. Bijendra Narain Choudhary, reported in AIR 1967 SC 1124, the Court ruled that while agreeing with the view of the trial court on the evidence, it is not necessary to restate the effect of the evidence or reiterate the reasons given by the trial court. Expression of general agreement with reasons given in the trial court judgment which is under appeal should ordinarily suffice. The same has been accepted by another three-Judge Bench in Santosh Hazari (Supra).
46. However, while stating the law, Hon'ble Apex Court has opined that -
"Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage to be adopted by the appellate court for shirking the duty cast on it. We are disposed to think, the expression of the said opinion has to be understood in proper perspective. By no stretch of imagination it can be stated that the first appellate court can quote passages from the trial court judgment and thereafter pen few lines and express the view that there is no reason to differ with the trial court judgment. That is not the statement of law expressed by the Court."
Page No.# 30/30
47. In view of the aforesaid legal proposition as laid down in the judgment of Yashoda (Supra) that whenever secondary evidence is placed, then there should be laying foundation of secondary evidence, otherwise secondary evidence is not admissible. In a similarly situated manner in the case in hand, the plaintiff/appellant has failed to lay foundation in the plaint as well as in his evidence-on-affidavit as to why he was unable to produce the original sale deed.
48. Both the trial court and the first appellate court have recorded concurrent findings on the basis of possible view. Therefore, there is no ground available of interference in aforesaid both the judgments. Both the aforesaid impugned judgments cannot be termed as perverse or against the evidence or based on inadmissible evidence or no evidence.
49. Resultantly, the trial court as well as the First Appellate Court are correct in dismissing the suit of the plaintiff/appellant. There are no grounds available to interfere with the findings of the trial court as well as the first appellate court. Hence, the second appeal is liable to be dismissed.
50. Accordingly, the appeal stands dismissed. There shall be no order as to costs.
51. Transmit the trial court records.
JUDGE Comparing Assistant