Rajasthan High Court - Jodhpur
Smt. Mathura Devi vs Jassa Ram on 2 May, 2023
Author: Nupur Bhati
Bench: Nupur Bhati
[2023/RJJD/012305]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 18109/2018
Smt. Mathura Devi W/o Late Shri Rama Ram, Aged About 79
Years, By Caste Patel, Resident Of Village Sarencha, Tehsil Luni,
District Jodhpur.
----Petitioner
Versus
Jassa Ram S/o Shri Poona Ram, By Caste Patel, Resident Of
Luni, Tehsil Luni, District Jodhpur.
----Respondent
For Petitioner(s) : Mr. Mukesh Kumar Trivedi
For Respondent(s) : Mr. Vishal Thakur
Mr. Sukh Dev
HON'BLE DR. JUSTICE NUPUR BHATI
Judgment Reserved on 26/04/2023 Pronounced on 02/05/2023 (1) This writ petition under Article 226 & 227 of the Constitution of India has been filed by the petitioner-plaintiff aggrieved of the order dated 06.09.2018 passed by learned Senior Civil Judge No.6, Jodhpur Metro in Civil Original Case No.28/15 (Smt. Mathura Devi Vs. Jassa Ram), whereby the application filed by the re- spondent-defendant under Section 65 of Evidence Act, 1872 for taking the secondary evidence relating to documents, was al- lowed.
(2) The facts in brief are that the petitioner-plaintiff filed a suit against the respondent-defendant stating therein that a plot was allotted in the name of her father-in-law Shri Bhika Ram and a patta was also issued by the Gram Panchayat Luni in the year (Downloaded on 02/05/2023 at 11:19:50 PM) [2023/RJJD/012305] (2 of 7) [CW-18109/2018] 1960. Shri Bhika Ram expired in the year 1974 and the land was vested in favour of husband of the petitioner-plaintiff, herself and her son. After the death of her husband, the property is in her possession. It is stated in the plaint that in the southern side of her plot, there is a plot of Naina Ram and Poona Ram and the re- spondent-defendant Jassa Ram is residing and since Jassa Ram wanted to grab the property of the petitioner-plaintiff, therefore, the petitioner-plaintiff filed a suit for injunction along with T.I. Application, which came to be decided in favour of the petitioner- plaintiff and status quo was ordered to be maintained. (3) After service of notice upon the respondent-defendant, he filed written statement and counter claim. The petitioner-plaintiff also filed rejoinder and written-statement to the counter claim. The learned Court below, on the basis of the pleadings of the parties, framed issues and the case was fixed for evidence of peti- tioner-plaintiff, which was closed in the year 2017 and the matter was fixed for the evidence of respondent-defendant. The matter was thereafter fixed for cross-examination of the respondent-de- fendant and his witness Naina Ram on 11.05.2018. On 11.05.2018, the respondent-defendant filed an application under Section 65 of the Evidence Act and prayed for taking on record a copy of the mauka report dated 10.11.1999 by way of secondary evidence. The petitioner-plaintiff filed reply to the application al- leging that the original copy of the said document is available with the Tehsildar, Luni and he has not submitted any proof of not hav- ing certified copy of the said report, thereby, not complied with the requirement of Section 65(1) of the Evidence Act. (Downloaded on 02/05/2023 at 11:19:50 PM)
[2023/RJJD/012305] (3 of 7) [CW-18109/2018] (4) The learned Court below, after hearing both the parties, allowed the application of the respondent-defendant (Annex.4) vide order dated 06.09.2018 (Annex.6).
(5) Thus, being aggrieved of the order dated 06.09.2018 (An- nex.6), passed by the learned court below, the petitioner-plaintiff has preferred the present writ petition.
(6) Learned counsel for the petitioner-plaintiff submitted that the application of the respondent-defendant was not maintainable un- der Section 65 of the Evidence Act for the reason that the re- spondent has produced photocopy of the lost document i.e. the original mauka report, as the original mauka report dated 10.11.1999 was not available with the Office of Tehsildar, Luni and further the respondent-defendant did not submit any documentary evidence based on which it can be proved that he had applied for certified copy of the mauka report. He further submitted that the Office of Tehsildar, Luni gave a report that the original mauka re- port dated 10.11.1999 was lost and destroyed, therefore, in the absence of the application submitted by the respondent-defendant that he had applied for the certified copy of the mauka report, the learned trial court ought not to have entertained the application of the respondent-defendant and, thus, the impugned order dated 06.9.2018 needs to be quashed and set aside on this ground. Counsel for the petitioner has placed reliance upon the judgment dated 01.08.2012 passed by Jaipur Bench of this Court in M/s. Electro Mechanical Engineering Corporation & Anr. Vs. Ad- ditional District Judge (Fast Track) No.1, Alwar & Anr., re- (Downloaded on 02/05/2023 at 11:19:50 PM)
[2023/RJJD/012305] (4 of 7) [CW-18109/2018] ported in 2013 (1) WLC (Raj.) 773; relevant portion whereof reads as follows :
"The respondent has also not examined any witness nor filed the re- quisite affidavit of the person, who was well conversant with the facts of the case at the time of the institution of the suit, to prove that the said documents were in fact in existence and that they have been lost or destroyed, as alleged. Under the circumstances, in absence of a proper explanation for not leading the best evidence and in absence of any evidence regarding the existence of the ori- ginal documents, and regarding loss of such documents, permission to lead secondary evidence in respect of said documents cannot be granted. As such, because the very existence of the original docu- ments has not been proved by the respondent- plaintiff, the copies of documents in question also could not be said to be the copies made from the originals, as contemplated under Section 63(3) of the said Act and, therefore, the secondary evidence with regard to the said copies of documents also could not be permitted to be given under Section 65 of the said Act."
Counsel for the petitioner has also placed reliance upon the judgment dated 21.02.2013 passed by this Court in Sultan & Ors. Vs. State & Anr., reported in 2013 WLC (Raj.) UC 368.
Counsel for the petitioner has further placed reliance upon the judgment of Hon'ble Apex Court dated 19.04.2007 in Smt. J. Yashoda Vs. Smt. K. Shobha Rani (Civil Appeal No.2060/2007). (7) Learned counsel for the respondent-defendant submitted that the fact whether the document is a valid document has to be proved by him only at the time of trial before the learned court below and, therefore, the petitioner-plaintiff cannot question the suitability and propriety of the document at this stage. Learned counsel for the respondent has placed reliance upon the judgment passed by this Court in Smt. Urmila Devi Vs. Smt. Bhanwari (Downloaded on 02/05/2023 at 11:19:50 PM) [2023/RJJD/012305] (5 of 7) [CW-18109/2018] Devi & Anr. (S.B. Civil Writ Petition No.9610/2016, decided on 13.03.2018).
(8) Heard learned counsel for the parties and perused the material available on the record.
(9) A bare perusal of Section 65 of the Evidence Act, 1872 makes it clear that secondary evidence may be given of the exist- ence, condition, or contents of a document 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 de- fault or neglect, produce it in reasonable time. (10) The respondent has specifically submitted in his application that the disputed plot was in his possession and in this regard plaintiff's son Bhera Ram had submitted a complaint before the Teshildar, Luni, on which, the Gram Panchayat, Sarpanch and Zila Parishad Members inspected the spot on 10.11.1999 and a report of the same was given to the defendant. The respondent defend- ant submitted that he tried to get certified copy of the said report from the Gram Panchayat, but due to non-availability he could not get the certified copy. He also stated orally before the learned court below that due to the record being lost or destroyed over a long period of time the Gram Panchayat had not made him avail- able for a long period of time. The respondent-defendant, there- fore, requested the learned court below to allow him to take the photocopy of the mauka report dated 10.11.1999 to be presented as secondary evidence.
(11) This Court finds that in the case of Jagmail Singh & Anr. Vs. Karamjit Singh & Ors., reported in Civil Appeal No.1889 of (Downloaded on 02/05/2023 at 11:19:50 PM) [2023/RJJD/012305] (6 of 7) [CW-18109/2018] 2020, Hon`ble Apex Court vide its judgment dated 13.05.2020 has held that the "16. In view of the aforesaid factual situation prevailing in the case at hand, it is clear that the factual foundation to establish the right to give secondary evidence was laid down by the Appellants and thus the High Court ought to have given them an opportunity to lead sec- ondary evidence. The High Court committed grave error of law without properly evaluating the evidence and holding that the pre-re- quisite condition i.e., existence of Will remained un-established on record and thereby denied an opportunity to the Appellants to pro- duce secondary evidence.
17. Needless to observe that merely the admission in evidence and making exhibit of a document does not prove it automatically unless the same has been proved in accordance with the law.
18. In view of the aforesaid legal and factual position, we are of the considered opinion that the impugned judgment of the High Court suffers from material irregularity and patent errors of law and not li- able to be sustained and is thus, hereby set aside. The appeal accord- ingly stands allowed.
19. The Appellants would be entitled to lead secondary evidence in respect of the Will in question. It is, however, clarified that such ad- mission of secondary evidence automatically does not attest to its au- thenticity, truthfulness or genuineness which will have to be estab- lished during the course of trial in accordance with law.
20. In the facts and circumstances, we do not make any order as to costs."
(12) Thus, as held in the aforementioned judgment that this is an established position of law that for secondary evidence to be admitted foundational evidence has to be given while giving the reasons as to why the original evidence has not been furnished and in the instant case respondent defendant has given sufficient reason for not furnishing the original evidence before the learned court below. It is also true that the existence of the original mauka report dated 10.11.1999 can only be proved during the (Downloaded on 02/05/2023 at 11:19:50 PM) [2023/RJJD/012305] (7 of 7) [CW-18109/2018] course of arguments before the learned court below and it is not the requirement of law that it should be proved at the first in- stance and thereafter only it could be admissible as secondary evidence.
(13) Since Section 65 of the Act purports secondary evidence when the original has been lost/destroyed, then there is no reason why the secondary evidence ought not be taken. The proposition of the secondary evidence never automatically means that the evidence rendered is truthful, authentic or genuine as the same has to be established during the course of trial. Thus, excluding the secondary evidence only with an apprehension of an improper evidence coming in at a preliminary stage is uncalled for. (14) Thus, the learned court below has rightly allowed the mauka report dated 10.11.1999 to be admissible as secondary evidence. No case for interference is made out. The writ petition being devoid of merit is hereby dismissed. No order as to costs.
(DR.NUPUR BHATI),J 74-Sanjay/-
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