Punjab-Haryana High Court
P.K. Gupta vs Varinder Sharma on 15 March, 2002
Equivalent citations: AIR2002P&H342, AIR 2002 PUNJAB AND HARYANA 342, (2002) 3 RECCIVR 185, (2002) 2 CIVILCOURTC 704, (2002) 2 PUN LR 385, (2002) 4 CIVLJ 462, (2002) 2 CURLJ(CCR) 269
JUDGMENT M.M. Kumar, J.
1. This is a revision petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity, the Code) challenging the order dated 4.10.2001 passed by the Civil Judge (Senior Division), Kurukshetra has dismissed the application of the plaintiff-petitioner seeking permission to prove the agreement dated 13.4.1996 by adducing secondary evidence in place of the original.
2. Brief facts of the case which led to the filing, of the present revision petition are that the plaintiff-petitioner has filed a civil suit No.336 of 18.9.1997 for recovery of Rs.30,000/- as principal sum plus interest at the rate of Rs. 12% per annum in terms of agreement dated 13.4.1996. It is averred that the plaintiff-petitioner entered into a consultancy agreement with the defendant-respondent for setting up a unit of zinc metal which was to produce ,zinc metal made from zinc ash. The unit was to be set up at Kurukshetra. A consultancy agreement is alleged to have been executed between the plaintiff-petitioner and defendant-respondent on 13.4.1996 at Kurukshetra and the same is alleged to be signed by both the parties in the presence of the witnesses. According to the agreement, the defendant-respondent was to prepare the project report and submit the same to the financial institution for sanctioning of loan and also get the necessary approval and clearance from the Government authorities. According to the averments, it was further agreed that if the loan was not sanctioned by the financial institution then defendant-respondent was to be entitled for an amount of Rs. 5,000/- only. No sanction was accorded by Haryana Financial Corporation. A total amount of Rs. 35,000/- having been paid, the plaintiff-petitioner asserted that he was entitled to get the refund of Rs. 30,000/- from the defendant-respondent as per the terms of the agreement. Alongwith the plaint a photostate copy of the agreement was enclosed. In the written statement the case set up by the defendant-respondent is that the plaintiff-petitioner has forged and fabricated the consultancy agreement dated 13.4.1996 and has deliberately produced a photocopy of the same in the Court as evidence. It is asserted that the plaintiff-petitioner is liable to be criminally prosecuted under the provisions of Indian Penal Code. According to the averment made in the written statement, an agreement is alleged to have been signed by the parties in May/June 1996 at Kurukshetra which was witnessed by one Shri Kulbhushan Gupta of Sangrur-a common friend of both the parties. It was further asserted that the afore-mentioned agreement was neither attested by any Notary Public nor the defendant-respondent ever signed the register of Shri Virinder Garg, District Notary who is alleged to have attested the consultancy agreement. It is vehemently denied that an agreement was executed on 13.4.1996 or 30.4.1996. Further averments have been made that the original agreement executed in May/June 1996 was kept by the plaintiff-petitioner and the photostat was not handed over to the defendant-respondent on the ground that photostat machine shops were closed as it was already 9.00 p.m. on the date of execution of agreement. The plaintiff-petitioner had promised to supply photostat copy of the agreement on his visit to Chandigarh. Even the terms and conditions of the original agreement alleged to be executed have been enumerated in the written state-
3. During the course of proceedings, the defendant-respondent filed an application under order VII rule 14 of the Code in which prayer for production of the original alleged agreement was made and a direction was sought that the plaint iff-petitioner be asked to produce the same. In the reply submitted by the plaintiff petitioner to the aforementioned application it was asserted that the original agreement has been kept by the defendant-respondent on the pretext that the same would be required in connection with the sanctioning of loan and implementation of the project. It was further asserted that a copy of the original was supplied by the defendant-respondent to the plaintiff-petitioner. It was duly attested by the District Notary on 13.4.1996. Thus, it was alleged that the original was in possession of the defendant-respondent and he should produce the same before the Court. The defendant-respondent filed a re-joinder asserting that the photostat copy of the agreement dated 13.4.1996 is not genuine and is a photostat of forged document. He has further explained that the contents of the original document alleging that it contained only 2 pages and there were two stamps of the Notary Public on the first page and the agreement was witnessed only by one witness, namely, Shri Kulbhushan Gupta. He reiterated his stand which he has taken in the written statement. It was thereafter that application has been filed by the plaintiff-petitioner to prove the agreement dated 13.4.1996 by adducing secondary evidence. The Civil Judge dismissed the application by recording the following reasons:
"After careful consideration of the arguments of both the parties, it is held that admittedly the applicant/plaintiff has failed to prove that the original agreement was either with the defendant/respondent or it has been lost. A perusal of the plaint shows that in the plaint in para No. 2 the applicant/plaintiff while relying upon the agreement dated 13.4.1996 pleaded that the photo copy of the agreement is enclosed with the plaint. It was no where pleaded in the original plaint that the original agreement was handed over to the defendant/respondent and only a attested copy by Nolary Public was handed over to the plaintiff. Not even this, later on this plea was taken by the applicant/plaintiff when the defendant/respondent moved an application for directing the plaintiff/applicant to produce the original agreement. At the same time, it is specifically pleaded by the respondent/applicant that the original agreement is very much with the plaintiff/applicant and he has intentionally concealed the same and put forward a false story that the original agreement is with the defendant/respondent. On the other hand, the applicant/plaintiff has forged and fabricated another document of the same date by fraud and forgery and the copy of the same has been produced and original of the same is also concealed to take the benefit of the wrong assertion.
In these circumstances, the question arises once the fact that whether the original agreement was with the defendant/respondent is not proved by the applicant/plaintiff, how the applicant/plaintiff can be allowed to prove that document by way of secondary evidence. In Sukhinder Kaur's case (supra) as well as in Santi Devi's case (supra), our own Hon'ble High Court of Punjab and Haryana held that in terms of Section 65(a) read with Section 66 of the Evidence Act, the permission to adduce secondary evidence cannot be given to a party unless the party proves the loss of the original document or other circumstances mentioned in that clause and where this fact is missing, the application for secondary evidence is liable to be dismissed . Similar are the facts in hand. Applicant/plaintiff has failed to prove that the original document was with the defendant/respondent. On the other hand, the pleadings of the applicant/plaintiff itself shows that the original document i.e. agreement is with the applicant/plaintiff and he has put forward a false and concocted story regarding custody of the same with the defendant/respondent."
4. Shri Hemant Kumar, learned counsel for the plaintiff-petitioner has argued that the order of the Civil Judge suffers from an inherent illegality as the prayer made by the plaintiff-petitioner has been rejected on the ground that he failed to show the existence of the document. According to the learned counsel, the existence of the document is not required to be proved in absolute terms. In support of his submission, he has placed reliance on two judgments of this Court in the cases of Smt. Sobha Rani v. Rani Kumar, (1998-3)120 P.L.R. 563 and Smt. Raj Kumari v. Shri Lal Chand. (1994-1)106 P.L.R. 190. He has further argued that the reasoning followed by the Civil Judge is not based on sound principle of law because the application for adducing secondary evidence has been rejected on the ground that the version of the plaintiff-petitioner was false and concocted. According to the learned counsel, the veracity of the document can only be determined after the document is examined in evidence and the document itself cannot be rejected on the ground that the same was forged. For this proposition, he has placed reliance on a judgment of the Supreme Court in the case of Nawab Singh v. Inder Jit Kaur; A.I.R. 1999 SX. 1668. His last submission is that if there was a doubt about the custody of the document or about its veraciousness then opportunity should have been afforded to the plaintiff-petitioner to show the custody, existence and contents of the documents. According to the learned counsel, had an issue been framed, the existence of the document and custody of the document could have been proved by adducing evidence as the document was witnessed by a Notary Public and other witnesses. For this proposition, the learned counsel has placed reliance on a judgment of this Court in case of Indian Overseas Bank v. Shayma & Co. and Ors., (1993-1)103 P.L.R. 630.
5. Shri Anil Khetarpal, learned counsel for the respondent has argued that the impugned order passed by the Civil Judge does not suffer from any legal lacuna. He has pointed out that the plaintiff-petitioner did not take any plea regarding the custody of the document in his suit whereas the stand taken by the defendant-respondent right from the beginning in the written statement is that no agreement dated 13.4.1996 was executed and the one executed in May/June 1996 was not even handed over to the defendant-respondent. He has drawn my attention to the registered AD notice dated 26.11.1996 served on defendant-respondents wherein reference has been made to agreement dated 13.4.1996 but nothing has been said about custody of the original which might suggest that it was in possession of the defendant-respondent. He has further argued that in the application filed by the defendant-respondent under order VII rule 14 of the Code it was specifically asserted that the document was in possession and custody of the plaintiff-petitioner and for the first time it was alleged by the plaintiff-petitioner in its reply dated 21.4.1998 that the agreement dated 13.4.1996 was in possession of the defendant-respondent. He has placed reliance on a judgment of this Court in the case of Ved Parkash and Anr. v. Kartar Kuar and Ors., (1993-2)104 P.L.R. 452 and argued that unless the existence and execution of the original is proved, secondary evidence of such a document under Section 65 of the Indian Evidence act. 1872 (for brevity, the Act) cannot be allowed. Explaining the judgment of the Supreme Court in the case of Nawab Singh (supra) relied upon by the plaintiff-petitioner, Shri Anil Khetarpal has argued that in that case there was no dispute with regard to possession or existence of the document and the document was not allowed to be tendered in evidence by suspecting that it was forged.
6. I have thoughtfully considered the respective submissions made by the learned counsel for the parties and have perused the record with their assistance.
7. A look at Section 65 of the Act is necessary for the decision of controversy raised in this case, which reads as under:
"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 nonce 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 person not arising from his own default or neglect, produce it in reasonable lime:
(d) When the original is of such a nature as not to be easily movable:
(e) When the original is a public document within the meaning of Section 74:
(f) When the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India, to be given in evidence:
(g) When the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection, In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible.
In case (b), the written admission is admissible.
In cases (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.
In case (g), evidence may be given as to the general result of the documents by any person who ha:; examined them, and who is skilled in the examination of such documents."
8. A perusal of clause (c) of Section 65 of the Act would show that secondary evidence of existence, condition or contents of a document can also be adduced when the party offering evidence of its contents cannot produce the original in reasonable time. But such a delay in production of the document should not have arisen from the fault or neglect of the party who wish to adduce secondary evidence of the document. To succeed in getting permission to adduce secondary evidence it must be shown that the document was in existence which was capable of being proved by secondary evidence and secondly proper foundation must be laid to establish the right to adduce secondary evidence. This view has been taken by a Constitution Bench of the Supreme Court in the case of Roman Catholic Mission v. Stale of Madras, A.I.R. 1966 S.C. 1457. Another well-known principle with regard to proof of facts is that best evidence must come before the Court because the best evidence which is, of course, the original document would furnish an opportunity to the Court to examine various surrounding facts attached with the original alone like the voraciousness of the signatures of the parties, the age of the document and other host of factors depending on the facts of each case. It is in the absence of the best evidence that the secondary evidence is allowed to be adduced because the object of judicial investigation by Court is to fathom the truth. Therefore, the law although insists upon production of the best evidence i.e. the original document yet it permit with proper safeguards the production of the secondary evidence of the original if certain conditions are satisfied, namely, the existence of the document which might have been lost or destroyed or the party in whose possession the original is shown or appears to be have refused to produce it before the Court despite notice or its existence, condition or contents have been proved to be admitted in writing so on and so forth. The rule regarding secondary evidence is not an open rule allowing any piece of photostat copies or an oral account of the original and the likewise to be tendered as secondary evidence.
9. In the present case, no doubt the existence of consultancy agreement dated 13.4.1996 has not been proved by the plaintiff-petitioner by any cogent evidence. It has also not been shown that the document was supposed to be in possession of the defen-
dant-respondent and he was liable to produce the same after notice. It has also not been shown that the document is admitted.
10. On. the other hand, it is true that the Civil Judge decided the vital question on which the whole suit is dependent in a summary manner without permitting the parties to adduce evidence to how the existence, condition or contents of the document. Moreover, the Civil Judge has jumped to a conclusion observing that the plaintiff-petitioner has put forward a false and concocted story regarding the custody of consultancy agreement dated 13.4.1996. Such a conclusion is not warranted unless the plaintiff-petitioner has been afforded an opportunity. There are facts and circumstances in the case which would warrant that the plaintiff-petitioner should have been given an opportunity and conclusion that a false and concocted story has been put forward regarding the custody of the original is unwarranted because the letter rejecting the proposal of loan by the Haryana Financial Corporation is dated 20.6.1996. The stand of the defendant-respondent in the written statement is that the consultancy agreement was executed in May/June which is vague and it does not specify any date. If the agreement was entered in June 1996 it is not possible for the Haryana Financial Corporation to hold a screening committee meeting on 19.6.1996. These are some of the reasons which would warrant that the Civil Judge should have framed an issue and allowed opportunity to the parties to show as to whether the agreement dated 13.4.1996 was in existence or not. The judgment of this Court in the case of Indian Overseas Bank (supra) relied upon by the learned counsel for the plaintiff-petitioner should have been followed and opportunity to prove the existence of the document either by producing the Notary Public or the witnesses or by any other mode should have been permitted. The Supreme Court in the case of T. Mohan v. Kannammal and Anr., J.T. 2002(2) S.C. 163 has held that secondary evidence could be received as genuine if the existence of the document is admitted. In that case, a suit for specific performance was filed and the original agreement dated 20.10.1980 between the parties was kept by the vendor. It was proved by leading evidence that the agreement was typed prior to the date of its execution. It was signed by the parties and attesting witnesses on 20.10.1980. It was also proved that the original has retained by the vendor. In these circumstances, a typed duplicate copy of the agreement was accepted as secondary evidence of the original especially when the signature of the vendor on the duplicate copy which was exhibited was admitted by his son. On this aspect, Their Lordships observed as under:
"As noticed earlier, the High Court found as a fact that the original agreement was kept with the vendor who did not produce the same before the Court. The said finding was based on the evidence of the witnesses PWs 1 and 4, who were examined on behalf of the plaintiff. From the evidence of these witnesses, it is clear that the agreement was typed out on the 13th October, 1986, signed by the parties and the attesting witnesses on 20th October, 1980. It was agreed then that the original document would be retained by the vendor. The High Court has also discussed the circumstances which make this aspect of the case probable and plausible. There is neither any illegality in appreciation of the evidence nor are the findings vitiated on any score. It is not in dispute that in the absence of the original document, the copy of the agreement which was typed as a duplicate of the document, could be received as secondary evidence in the case. The son of the vendor (deceased) DW 2 has admitted the signatures on the document exhibit P1 to be those of his father. In such circumstances, no exception could be taken to acceptance of the document as genuine and its contents as true. On the evidence on record, sufficient foundation for accepting the document by way of secondary evidence in terms of Section 65 of the Evidence Act has been laid."
11. In the present case, no evidence has been led to show either the existence of the document or any opportunity to lead any evidence has been afforded. It appears to me that there is a possibility either way to decide the contentious issue by the Civil Judge only after allowing opportunity to both the parties. Such an application should not have been decided in a summary manner adopted by the Civil Judge.
12. For the reasons recorded above, this revision petition succeeds. The impugned order dated 4.10.2001 is set aside. A direction is issued to the Civil Judge to decide the application afresh by affording an opportunity to the parties to prove the existence and custody of the document.