Himachal Pradesh High Court
__________________________________________________________ vs Sh. Gurdyal Singh & Others on 1 January, 2019
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
CMPMO No.457 of 2018
.
Date of Decision: 1.1.2019
__________________________________________________________
M/s Vardhman Textiles Limited .....Petitioner
Versus
Sh. Gurdyal Singh & others .....Respondents
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 Yes.
For the Petitioner r : Mr. Romesh Verma, Advocate.
For the Respondents :Mr. A.K. Sharma, Advocate.
__________________________________________________________
Sandeep Sharma, Judge (oral):
Being aggrieved and dissatisfied with the order dated 23.8.2018, passed by learned Civil Judge, Court No.2, Nalagarh, District Solan, Himachal Pradesh, whereby an application having been filed by the petitioner (hereinafter referred to as the 'plaintiff') under Section 63/65 of the Indian Evidence Act ( for short 'Act'), praying therein for permission to lead secondary evidence to prove the contents of agreement dated 25.8.1994, came to be dismissed, plaintiff has approached this Court in the instant proceedings filed 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 04/01/2019 23:01:46 :::HCHP 2under Article 227 of the Constitution of India, with a prayer to set-aside the impugned order, referred .
hereinabove, and allow his application filed under Section 63-65 of the Act.
2. Necessary facts, as emerge from the record are that the plaintiff filed a suit for possession by way of Specific Performance of Agreement and for Permanent Prohibitory (hereinafter Injunction referred r to against as the the respondents 'defendants'), averring therein that predecessor-in-interest of the defendants namely,Smt. Dropti widow of Sh. Thehar son of Sh. Sadhu, had entered into an agreements of sale dated 26.2.1994 and 25.8.1994. As per the plaintiff, defendants vide agreement to sell dated 25.8.1994 had received full and final payment and they after having received the entire payment, delivered the possession of the suit property at the spot. Since, defendants No.1 to 3 inherited the property, which is subject matter of the agreements, referred hereinabvoe, inheritance of mutation was sanctioned in the name of defendants No. 1 to 3. Plaintiff issued notices to the defendants to perform ::: Downloaded on - 04/01/2019 23:01:46 :::HCHP 3 their part of agreement, but since they failed to execute the sale deed of their share in favour of the plaintiff .
despite there being agreements to sell executed by the their predecessor-in-interest, plaintiff instituted the suit, as detailed hereinabove, against the defendants.
3. Defendants by way of written statement specifically denied the factum, if any, with regard to execution of agreements to sell dated 26.2.1994 and 25.8.1994 by their predecessor-in-interest. Defendants also denied that their predecessor-in-interest received money, if any, in terms of the agreements to sell alleged to have been entered by their predecessor-in-interest with the plaintiff.
4. On the basis of the pleadings adduced on record by the respective parties, issues though came to be framed in the year, 2014, but evidence in the case is yet to commence, as has been fairly stated by both the learned counsel representing the parties. During the pendency of the trial before the learned Court below, an application under Section 63/65 of the Act, came to be filed on behalf of the plaintiff, seeking therein permission ::: Downloaded on - 04/01/2019 23:01:46 :::HCHP 4 to lead secondary evidence to prove the factum with regard to full and final payment made to the executant .
i.e. predecessor-in-interest of the defendants vide agreement to sell dated 25.8.1994. Aforesaid application came to be hotly contested by the defendants, who claimed that application at this belated stage cannot be allowed. Defendants also averred that moreover no specific case has been set up to enable the Court to allow the application, if any, filed under Section 63/65 of the Act, permitting therein plaintiff to lead secondary evidence.
5. Learned Court below on the basis of the material adduced on record by the respective parties, dismissed the application having been preferred by the plaintiff, as a consequence of which, it has approached this Court in the instant proceedings filed under Article 227 of the Constitution of India, with a prayer to allow its application after setting aside the impugned order.
6. Having heard learned counsel representing the parties and perused the material available on record vis-
a-vis reasoning assigned by the Court below while ::: Downloaded on - 04/01/2019 23:01:46 :::HCHP 5 passing the impugned order, this Court is persuaded to agree with Mr. Romesh Verma, learned counsel .
representing the plaintiff that Court below while passing the impugned order has gone astray because careful perusal of prayer made in the application under Section 63/65 of the Act, having been filed by the plaintiff (Annexure P-4), nowhere suggest that it intended to prove agreement dated 26.2.1994, photocopy whereof is already on record, rather by way of application, referred hereinabove, plaintiff sought permission of the Court below to prove contents of the agreement dated 25.8.1994 alleged to have been executed by the predecessor-in-interest of the defendants. Probably, plaintiff by leading secondary evidence intended to prove factum with regard to full and final payment having been received by the predecessor-in-interest of the defendants.
If impugned order is read in its entirety, it clearly reveals that learned Court below while deciding the application misdirected itself because entire findings recorded by the learned Court below is qua the agreement dated 26.2.1994, photocopy whereof is already on record. No ::: Downloaded on - 04/01/2019 23:01:46 :::HCHP 6 doubt, in case plaintiff intended to prove contents of agreement dated 26.2.1994, it ought to have laid .
foundation in the application that original of the same has lost somewhere and it is not traceable because it has placed on record photocopy of the same.
7. But, as has been discussed hereinabove, in the case at hand, prayer of plaintiff is that it be permitted to prove contents of agreement dated 25.8.1994, original whereof is not traceable. It is not in dispute that plaintiff has specifically averred in its plaint that vide agreements dated 26.2.1994 and 25.8.1994, predecessor-in-interest of the defendants agreed to sell the suit property in favour of the plaintiff and she vide agreement to sell dated 25.8.1994 received the entire payment towards full and final sale consideration. Though, aforesaid assertion made by the plaintiff in the plaint has been denied by the defendants in the written statement, but it cannot be said that such plea has been taken by the plaintiff out of blue while moving application under Section 63-65 of the Act.
There is no quarrel that while moving application under Sections 63-65 of the Act, plaintiff has not specifically ::: Downloaded on - 04/01/2019 23:01:46 :::HCHP 7 averred that original of agreement dated 25.8.1994 is somewhere lost or has destroyed and plaintiff intends to .
prove the contents of the same by examining particular person, but to my mind that cannot be a ground to dismiss the application because ultimately it is to prove document intended to be proved by it by leading secondary evidence, in accordance with law.
8. Section 65 of the Act, deals with the situations/ circumstances under which secondary evidence relating to documents can be given to prove the existence, condition or contents of the documents. If Section 65 is read in its entirety, it reveals that secondary evidence can be led if original of documents intended to be produced by secondary evidence is destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time. Party intending to produce secondary evidence requires to establish for the non-production of primary evidence. Unless, it is established that the original documents is lost or destroyed or is being deliberately withheld by the party in ::: Downloaded on - 04/01/2019 23:01:46 :::HCHP 8 respect of that document sought to be used, secondary evidence in respect of that document cannot be .
accepted.
9. 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) Supreme Court Cases, 483, wherein it has been held as under:-
"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 mentioned in Section 65 of the Evidence Act. In the absence of primary evidence, document can be proved by secondary evidence as contemplated under Section 63 of the Act which 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 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;::: Downloaded on - 04/01/2019 23:01:46 :::HCHP 9
(5) oral accounts of the contents of a document given by some person who has himself seen it."
.
"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 rdocument 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 ::: Downloaded on - 04/01/2019 23:01:46 :::HCHP 10 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 admissble.
In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, admissible.
In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents."
15. The preconditions for leading secondary evidence are that such original documents could not be produced by the party relied upon such documents in spite of best efforts, unable to produce the same which is beyond their control. The party sought to produce secondary evidence must establish for the non-production of primary evidence. Unless, it is established that the original documents is lost or destroyed or is being deliberately withheld by the party in respect of that document sought to be used, secondary evidence in respect of that document cannot accepted.
::: Downloaded on - 04/01/2019 23:01:46 :::HCHP 1116. The High Court in the impugned order noted the following :(Anita Beri vs. Rakesh Mohindra SCC Online HP 4258 para-9) .
"9. There is no averment about Ext. DW-2/B in the Written Statement. The Written Statement was filed on 19.2.2007. DW-2/B infact is only a photocopy. The plaintiffs are claiming the property on the basis of a registered will deed executed in her favour in the year 1984. It was necessary for the defendant to prove that in what manner the document dated 24.8.1982 was executed. The defendant while appearing as AW-1 has admitted in his cross-examination that except in his affidavit Ext. AW-1/A, he has not mentioned in any document that the letter of disclaimer was executed by Justice late Sh. Tek Chand in his presence. The statement of DW-2 does not prove that Ext. DW-2/A, ever existed. DW-2 Sh. Gurcharan Singh, has categorically admitted in his cross-examination that he has not brought the original of Ext. DW- 2/B. He has also admitted that on Ext. DW-2/B, the signatures of P.C. Danda were not legible. Volunteered that, those were not visible. The learned trial Court has completely misread the oral as well as the documentary evidence, while allowing the application under Section 65 of the Indian Evidence Act, 1872, more particularly, the statements of DW- 2 Gurcharan Singh and DW-3 Deepak Narang. The applicant has miserably failed to comply with the provisions of Section 65 of the Indian Evidence Act, 1872. The learned trial Court has erred by coming to ::: Downloaded on - 04/01/2019 23:01:46 :::HCHP 12 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 DW-2, who is working as UDC in the office of DEO, Ambala produced the original GLR register. He has produced four sheets of paper including a photo copy of letter of disclaimer. He has stated that the original documents remained in the custody of DEO. In cross-examination, his deposition is reproduced hereinbelow:-
"xxxxxxxx by Sh. M.S. Chandel, Advocate for the plaintiff No.2. I have not brought the complete file along with the record. I have only brought those documents which were summoned after taking up the documents from the file. As on today, as per the GLR, Ex.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.DW-2/B. It is correct that Ex.DW-2/D does not bear the signatures of Sh. P.C. Dhanda. Volunteered.: These are not legible. Ex.DW-2/C is signed but the signatures are not leible. On the said document the signatures of the attesting officer are not legible because the document became wet. I cannot say whose ::: Downloaded on - 04/01/2019 23:01:46 :::HCHP 13 signatures are there on these documents. On Ex.DW-2/E the signatures at the place deponent also appears to have become illegible because of water. Ex.DW-2/F also bears the faded signatures and only Tek Chand is legible on the .
last page. It is incorrect to suggest that the last page does not have the signatures of the attesting authority. Volunteered: These are faded, but not legible. The stamp on the last paper is also not legible. There is no stamp on the first and second page. In our account, there is no family settlement, but only acknowledgement of family settlement. I do not know how many brothers Rakesh Mohindra has.
It is correct that the original of Ex.DW-2/H does not bear the signatures of Sh. Abhay Kumar. I do not know whether Sh. Abhay Kumar Sud and Rakesh Mohindra are real brothers. The above mentioned documents were neither executed nor prepared in my presence. It is incorrect to suggest that the above mentioned documents are forged. It is incorrect to suggest that because of this reason I have not brought the complete file."
19. In Ehtisham Ali v. Jamma Prasad 1921 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, 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 ::: Downloaded on - 04/01/2019 23:01:46 :::HCHP 14 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.
10. Leaving everything aside, it is not in dispute that evidence is yet to commence and in all eventualities defendant would get an opportunity to cross-examine the person examined, if any, by the plaintiff to prove the contents of agreement dated 25.8.1994 by way of secondary evidence. Though, there is no limitation, as such provided to move application under Section 63-65 of the Act, seeking therein permission to lead secondary evidence, rather same can be filed at any stage, but this Court cannot loose the sight of the fact that issues in the case at hand were framed in the year, 2014, whereas present application came to be filed in the year, 2018, which fact certainly compels this Court to agree with Mr. ::: Downloaded on - 04/01/2019 23:01:46 :::HCHP 15 A.K.Sharma, learned counsel representing the defendants that plaintiff itself is trying to delay the proceedings.
.
11. Consequently, in view of the above, the present petition is allowed subject to payment of cost amounting to Rs. 15000/- payable to the defendants. The impugned order dated 23.8.2018, passed by learned Civil Judge, Court No.2,Nalagarh, District Solan, H.P., is quashed and set-aside. It is further clarified that till the time payment of cost, as quantified hereinabove is not paid, no opportunity to lead secondary evidence be given to the plaintiff.
12. The parties through their respective counsel(s) are directed to appear before the learned Court below on 11.01.2019, to enable it to proceed with the matter.
13. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this petition alone.
Pending application(s), if any, also stands disposed of.
(Sandeep Sharma), Judge 1st January,2019 (shankar) ::: Downloaded on - 04/01/2019 23:01:46 :::HCHP