Rajasthan High Court - Jodhpur
M/S. Nirma Limited vs Additional District And Sessions Judge ... on 26 March, 2019
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ No. 4541/2019
M/s. Nirma Limited, Having Registered Office At Nirma House,
Ashram Road, Ahmedabad-380 009, Gujarat Through Its
Authorized Signatory Shri Parikshit Khiria S/o Shri Kailashdan Ji,
Aged About 38 Years, Presently Posted As Officer (Legal), M/s.
Nirma Limited, Village- Nimbol, Tehsil- Jaitaran, District- Pali
(Rajasthan).
----Petitioner
Versus
1. Additional District And Sessions Judge Sojat, District- Pali.
2. Baldev Ram S/o Shru Durga Ram,, Resident Of Village-
Digarna, Tehsil- Jaitaran, District- Pali.
3. Ranjeet Prakash Singh S/o Shri Moti Lal,, Resident Of
Village- Jhunjhada, Tehsil- Jaitaran, District Pali.
4. Hanuman Ram S/o Bhiya Ram,, Resident Of Village-
Balunda, Tehsil- Jaitaran, District Pali.
5. The Sub Registrar-Jaitaran, Tehsil- Jaitaran, District- Pali.
----Respondents
For Petitioner(s) : Mr. Rajesh Joshi, Sr. Advocate
assisted by Mr. Vineet Dave
For Respondent(s) : Mr. N.R. Choudhary
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 26/03/2019
1. Counsel for the petitioner has preferred the instant writ petition under Article 227 of Constitution of India for the following reliefs :-
(a) by an appropriate writ, order or direction, the impugned order dated 14.02.2019 (Annex.10) passed by the learned Additional District & Sessions Judge, Sojat in Civil Original Suit No.29/2017 (Downloaded on 30/06/2019 at 05:02:07 AM) (2 of 8) [CW-4541/2019] (73/2014) (M/s. Siddhi Vinayak Cement Pvt. Ltd. Vs. Baldevram & Ors.) may kindly be declared illegal and be quashed and set aside.
(b) by an appropriate writ, order or direction, the application filed by the petitioner under Section 65 of Evidence Act, 1872 may kindly be allowed and the petitioner may kindly be permitted to adduce in evidence the secondary evidence in the form of photocopy of the public notice dated 02.01.2011 in the said proceedings."
2. The petitioner claims itself to be the successor-in-title in relation to the land falling in Khasra No.416 admeasuring 18 bighas located at Village Nimbol, Tehsil Jaitaran, District Pali. The petitioner submitted an application under Section 65 of the Indian Evidence Act, 1872 alongwith an affidavit for taking public notice dated 02.1.2011 on record as published in 'Dainik Navjyoti' through the counsel Shri Ramgopal Sharma on behalf of M/s. Siddhi Vinayak Cement Pvt. Ltd., however, the same was rejected by the court below vide order dated 14.2.2019. Counsel for the petitioner relied upon the judgment of this Court in Maharaj Kumar Chand Vs. Jodhpur Film Vitrak Sahakari Samiti Ltd., reported in RLW 1999(1) Raj page 977, relevant portion whereof read as follows :-
" 2. It is being contended by the learned Counsel for the revision petitioner before me that loss of document can be proved by the statement of the defendant alone because he was in custody of the documents. When he has stated on affidavit that he had lost the documents, there could be no other evidence to contradict him and therefore, the question was of the credibility of his statement. If the trial court was not satisfied by statement on oath in an affidavit it could have permitted cross- examination on the affidavit of the defendant, but could not have rejected the averments in the affidavit outright. It was also contended that when photo-copies of the documents were already on record and there is no material on record to show that the defendant was playing a deliberate mischief, the (Downloaded on 30/06/2019 at 05:02:07 AM) (3 of 8) [CW-4541/2019] secondary evidence should have been allowed to be led. The learned Counsel for the non-petitioner in reply submitted that if the statements of the parties are taken on their face value, no application under Section 65 of the Evidence Act for permission to lead secondary evidence on the ground of loss of documents could be rejected and the parties would be at the mercy of the other side and will have to contend with secondary evidence of nonexisting documents.
3. I have carefully considered the question involved in this case. The difficulty of a person who has genuinely lost a document is understandable. When he states on oath that the originals in his custody have been lost, in most of the cases he may not have any other evidence to prove the loss except his own knowledge, corroboration being almost impossible in such cases. Even if it is possible to give some evidence of the existence of the document and of the fact that document was in the custody of a party, hardly any evidence except, the evidence of the party himself may be available of the loss of the document. In any case a party cannot be shut out from contending that he was in the custody of the originals at a particular time and subsequently lost them. This he is expected to do by an affidavit only because there is no other practical method, by which it can be inquired into as to whether conditions for allowing secondary evidence...or not. If oral evidence is taken on the question of the custody and the loss of the documents or on the general question as to whether prerequisites of Section 65 of the Evidence Act have been fulfilled or not, it would result in a trial within trial. Section 65 of the Evidence Act does not envisage an application for permission of the Court to lead secondary evidence. It provides that the secondary evidence may be given on the existence, conditions or contents of the documents. It cannot therefore, be said that a person who desires to lead secondary evidence has to apply to the court for permission to do so and that permission is to be granted after deciding by taking evidence as to the existence of the circumstances in Which a party may lead secondary evidence. It appears in the scheme of things that a party may offer secondary evidence to be given of the existence, condition or contents of a document by filing an affidavit stating the grounds on which he seeks exemption from production of primary evidence and wants to lead secondary evidence. The question as to whether a party has made out a case for leading secondary evidence (Downloaded on 30/06/2019 at 05:02:07 AM) (4 of 8) [CW-4541/2019] or not should normally be decided on the basis of affidavits filed by the parties. "
Counsel for the petitioner further relied upon the judgment of this Court in Harishankar Vs. Smt. Gomti & Ors. (S.B. Civil Writ Petition No.637/2017, decided on 08.1.2018), relevant portion whereof read as follows :-
"11. After hearing the learned counsel for the parties as well as perusing the record of the case, this Court is of the opinion that Section 65(c) of the Evidence Act has a clear legislative intention for taking a photostat copy of the original record as secondary evidence, when the original document was lost.
12. It is not disputed by the petitioner that the original document has been lost. The provision of Section 66 of the Evidence Act would not apply on the provision of Section 65(c), which, for ready reference, is quoted hereinbelow:-
"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) . . . . ....
(b) . . . . ....
(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;
. . . . . . . . . ."
13. Admittedly, the lost document is the only ground, on which the plaintiff/petitioner has approached the learned court below seeking invocation of Section 65(c) of the Evidence Act. Since the origin of the patta has not been disputed and it is admittedly a Jagirdari patta, which may not be easily available in the record, it would have been appropriate for the learned court below to have allowed the application under Section 65 of the Evidence Act and permit the petitioner to bring on record the photostat copy of the patta as secondary evidence for the matter.
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14. In light of the aforesaid observations, the present writ petition is allowed and the impugned order dated 29.09.2016 (Annex.6) passed by learned Civil Judge, Bali, District Pali is quashed and set aside, and the learned court below is directed to take the photostat copy of the patta on record, as per the provisions of Section 65(c) of the Evidence Act."
Counsel for the petitioner also relied upon the judgment of this Court in Keshu Ram & Anr. Vs. Sonaki Bai W/o. Raju Ram & Anr., reported in AIR 2018 (Raj.) 10; relevant portion whereof read as follows :-
"22. The argument of Mr. Bishnoi has been, that the petitioners are required to first prove that the photocopy of the agreement to sell being sought to be produced in evidence is a photocopy of the original, made by a mechanical process which ensures accuracy; and so also the existence of the original document itself. His assertion that it is required of the Court to decide the same, while deciding application under Section 65 of the Act, is in a way, putting the cart before the horse. Since Section 65 itself permits secondary evidence to be given for existence, condition or contents of the document, this Court is of the view that even the existence of the document can be proved and/or questioned while leading requisite evidence for proving the contents, conditions and genuineness of the document, by way of leading appropriate evidence. All the three conditions namely existence, condition or contents of the document may be proved by way of secondary evidence, if the provisions of Sections 65 and 63 are homogeneously and harmoniously construed.
29. Adverting to the requirement of filing affidavit, in absence of any statutory requirement, this Court is of the firm view that an application cannot be thrown, merely because it is not supported by an affidavit. The requirement of affidavit, even if presumed to be necessary, deserves to be done away with, as (Downloaded on 30/06/2019 at 05:02:07 AM) (6 of 8) [CW-4541/2019] the plaintiffs had come out with the categorical case and assertion that original had been lost, even at the stage of filing the plaint, which plaint was supported by an affidavit. Even otherwise, the requisite affidavit can be permitted to be filed subsequently, as held by Hon'ble Supreme Court in case of State of Rajasthan v. Khemraj, reported in (2000) 9 SCC 241.
30. The third contention of the Respondent that the petitioners have not stated that "the copy being placed as secondary evidence is a copy generated by mechanical process, which ensures the accuracy" is equally fallacious. The term photocopy itself is a synonym of process of preparing copy by xerox machines, which produces a photographic reproduction of the document, by a process involving the action of light. As such the assertion of the plaintiffs that it is a photo copy, is capable of conveying the meaning that the copy generated is by a mechanical process, which ensures accuracy. It is to be noted that in the year 1872 when Section 63 of the Evidence Act was introduced, the xerox machines were not even invented (the Photostat machine was invented in 1938), hence sub-section (2) of Section 63 of the Evidence Act, provides inherent checks to ensure accuracy. As such the recital as proposed by the Respondents would be an empty formality, which even if made, cannot do away with the requirement of proving its existence veracity."
3. Counsel for the petitioner submits that the respondents have not chosen to file reply to the affidavit whereby such publication of notice has been sought to be brought on record by way of filing application U/s.65 of the Evidence Act. Since the document itself is not controverted and original was not traceable, therefore, the petitioner having left with no other option but move such application. Facility of publication in newspaper cannot be availed by the petitioner as the document is not on record (Downloaded on 30/06/2019 at 05:02:07 AM) (7 of 8) [CW-4541/2019] alongwith the original pleadings and, therefore, for such presumption the documents shall have to be taken on record if at all such presumption has to be drawn. Counsel for the petitioner further submits that photocopy of a document is exact version and once it is not denied, then taking the document on record would only enable court below proper adjudication of the dispute in- question.
4. Counsel for the respondent submits that the suit was filed in 2014 and the list of documents does not contain this document, hence, at this belated stage taking the document on record as secondary evidence would not be appropriate. Counsel for the respondent further submits that petitioner moved application solely with an intent to delay the proceedings as petitioner could not render its evidence even after availing sufficient opportunities for a considerable time. Counsel for the respondent submits that the document in-question could have easily been obtained from the publisher of newspaper concerned, thus, it cannot be said to be a lost document.
5. After hearing learned counsel for the parties this Court is of the opinion that the document in-question has not been denied by respondents and there is no averment to contradict existence of said document. It is also observed by this Court that the document in-question, which is a photocopy, has been refused to be brought on record on the ground that original being not available with the lawyer on behalf of whom public notice dated 02.1.2011 was published in newspaper. This Court has also seen precedent law, which reflects that there should be a liberal view construing usage of Section 65 of Evidence Act as with changing time and technology photo-copies are virtually showing the (Downloaded on 30/06/2019 at 05:02:07 AM) (8 of 8) [CW-4541/2019] documents in its original with highest degree of similarity. This Court also finds that when once the respondents have chosen not to file any reply or to make any objection to the application filed under Section 65 of Evidence Act, then the learned court below ought to have taken a liberal view in allowing the application by taking publication of public notice dated 02.01.2011 on record so as to enable the parties to have swift adjudication of the dispute.
6. In light of the aforesaid discussion, the present writ petition is allowed. The order dated 14.2.2019 passed by learned Additional District & Sessions Judge, Sojat, District Pali in Civil Original Suit No.29/2017 (73/2014) is quashed and set aside. The application filed by petitioner U/s.65 of Evidence Act, 1872 is allowed. The learned court below is directed to accept photocopy of public notice dated 02.1.2011 as secondary evidence in the suit proceedings. The petitioner shall bring its evidence on record on the next date before the learned trial court and all necessary efforts shall be made by petitioner to abide by the orders passed by learned trial court from time to time for quick disposal of the case as it is an old case which deserves and requires swift adjudication. Further, the court below shall be required to expedite hearing of the suit proceedings.
(Dr. PUSHPENDRA SINGH BHATI), J.
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