Punjab-Haryana High Court
Banarsi Dass vs Om Parkash And Ors. on 8 February, 2005
Equivalent citations: AIR2005P&H200, (2005)140PLR358, AIR 2005 PUNJAB AND HARYANA 200, 2005 (2) RECCIVR 72.2, (2005) 2 CURLJ(CCR) 63, (2005) 2 CIVILCOURTC 629, (2005) 3 LANDLR 687, (2005) 2 PUN LR 358, (2005) 2 RECCIVR 72(2), (2005) 3 CURCC 523
Author: Ajay Kumar Mittal
Bench: Ajay Kumar Mittal
JUDGMENT Ajay Kumar Mittal, J.
1. In this revision petition under Article 227 of the Constitution of India, the plaintiff-petitioner has impugned order dated 7.9.2004 passed by the Civil Judge (Senior Division), Kamal whereby application for leading secondary evidence in respect of agreement dated 13.10.1998 regarding sale of suit property has been declined.
2. The plaintiff-petitioner, on 3.1.2002, filed a suit for specific performance of agreement dated 13.10,1998 and to execute and register sale-deed regarding 349 sq. yards of land in favour of the plaintiff on receipt of balance consideration of Rs.2,01,500/- and to hand over actual physical possession.
3. The defendant-respondents in the written statement dated 21.5.2002 denied having entered into any agreement with the plaintiff for purchase of land in question and further averred that if the plaintiff was having any agreement to sell then the same is false, forged and fabricated.
4. Thereupon, on 12.6.2002, the plaintiff-petitioner filed an application under Section 65 of the Indian Evidence Act, 1872 (in short "the Act") read with Section 151 of the Code of Civil Procedure (for short "the Code") for leading secondary evidence to prove agreement to sell dated 13.10.1998 on the ground that the original agreement to sell is not traceable as the same has been misplaced during the marriage of his daughter which had taken place on 8.5.20002 and on that occasion white-washing of the house had taken place in which the original agreement to sell was misplaced. It was further averred that the agreement to sell was attested by Notary Public and there is an entry in his register.
5. Defendant Nos.2 and 3 objected to the application and claimed that the original agreement to sell dated 13.10.1998 being an important document should have been kept in safe custody and this is an attempt to fill up the lacuna in plaintiffs case. Defendant No. 1 also objected to the said application on the ground that photocopy of the document has no authenticity and it cannot be proved by secondary evidence. It was further submitted that there was no document in existence as claimed by the plaintiff and, therefore, no question for proving the non-existent document by way of secondary evidence could raise.
6. Mr. Virkam Singh, learned counsel for the petitioner has reiterated the submissions as made before the trial Court and further submitted that the trial Court has erroneously declined the leading of secondary evidence to prove the agreement to sell. He has placed reliance on the judgments reported in Vardan Feed Mills and Anr. v. S.S. Zombade, (2001-2)128 P.L.R. 600 and Ram Pal and Anr. v. Syndicate Bank, (2000-3)126 P.L.R. 135 to strengthen his submissions.
7. On the other hand, Mr. Sanjiv Gupta, learned counsel for the respondents has submitted that in view of the law laid down in the cases reported in Mangat Ram v. Prabhu Dayal and Ors., (2002-3)132 P.L.R. 333 and Hari Singh v. Shish Ram (2002-3)132 P.L.R. 538, the plaintiff-petitioner was required to prove the existence and loss of document in question and both the requirements having not been fulfilled in the case, the learned trial Court has rightly declined leading of secondary evidence in respect of the agreement to sell. He further submitted that the plaintiff was required to prove as to how photocopy of agreement came into his possession when under law he was not required to keep any such copy with him.
8. I have heard learned counsel for the parties and perused the record.
Section 65 of the Act 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 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 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 case (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 has examined them, and who is skilled in the examination of such documents."
9. In Mangat Ram's case (supra), this Court upheld in the order of the trial Court therein the parties seeking secondary evidence, failed to prove how its photocopy has been procured when under law, it was not required to keep these documents in duplicate or in triplicate. Para No. 4 of the said judgment reads as under;-
"A. perusal of the order passed by the Civil Judge shows that primary reason for rejecting application is that defendant/petitioner failed to prove that how he arranged photocopies of the original documents. The view of the Civil Judge extracted in para above appears to be that once the documents are lost or destroyed then the defendant/petitioner must show how its photocopies have been procured. It is not a case where the documents were required to be kept, in duplicate or in triplicate. Having failed to prove as to how he arranged the photocopies of the original documents, the application was dismissed. Even at the time of hearing, learned counsel was not able to explain this aspect. In Hari Singh's case (supra), in para 12, it was noticed by this Court as under;-
"12. 1 am further of the view that the argument of the learned counsel for the defendant-respondents that the plaintiff-petitioner has failed to fulfill the essential ingredients of Section 65 of the Evidence Act as he has failed to prove the existence of document dated 31.12.1991 is also well founded. Before a party is permitted to adduce secondary evidence it is a sine qua non for him to show that the document is in existence and despite notice it has not been produced by the party in whose custody the document is kept. In the present case, the plaintiff-petitioner has not been able to prove even the existence of document dated 31,12.1991, therefore, on this account also, the revision petition is liable to be dismissed."
10. It needs to be noticed that under Order VII Rule 14 of the Code, a duty is enjoined on the plaintiff to file the original documents along with the plaint on which it placed reliance. Rule 14 reads as under: -
"14. Production of document on which plaintiffs sues or relies.- (1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time, deliver the document and a copy thereof, to be filed with the plaint.
(2) Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is.
(3) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.
(4) Nothing in this rule shall apply to document produced for the cross-examination of the plaintiffs witnesses, or handed over to a witness merely to refresh his memory.]"
11. In the present case, the suit itself was for the specific performance of agreement to sell dated 13.10.1998, therefore, under the aforesaid provisions the same should have been filed with the plaint when the suit was filed on 3.1.2002. No explanation has been tendered by the plaintiff-petitioner for not tiling the original agreement. The application for leading secondary evidence is an after-thought as in the written statement, the defendants have denied the very existence of the agreement and thereafter the plea of loss has been set up and photocopy is sought to be proved on record. The photocopy of the agreement was produced in Court during the course of hearing, a perusal of the same shows that the copy is of a faint print and moreover, the photocopy in the present case shall be of no significance unless its execution is admitted by the other side. Moreover, the stamp of the Notary Public on the photocopy of agreement to sell does not bear any serial number. Further there is no mention in the plaint that agreement to sell has been attested by the Notary Public.
12. Now adverting to the case law relied on by learned counsel for the plaintiff-petitioner in Vardan Feed Mills' case (supra), that was case wherein secondary evidence was sought to be led in respect of the letters which were received by the Punjab Agricultural University and there was a mention in the receipt registers of the University regarding the receipt. Similarly, in Ram Pals' case (supra), wherein the secondary evidence was sought to be led in respect of a document where the original was placed on the record but was misplaced, The existence and loss thus were established in that case.
13. The judgments M/s Vardan Feed Mills's case (supra) and Ram Pal's case (supra) cited by learned counsel for the plaintiff-petitioner are not applicable to the facts and circumstances of the present case as the very existence and loss has not been established in the present case. For the reasons stated above, there is no merit in the present revision petition. The learned trial Court has rightly dismissed the application for leading secondary evidence.