Gauhati High Court
Afajuddin vs Abdur Rahman on 2 August, 2017
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM &
ARUNACHAL PRADESH)
CRP 63 of 2017
AFAJUDDIN .....Petitioner
-Versus-
ABDUR RAHMAN .....Respondent
BEFORE HON'BLE MR. JUSTICE KALYAN RAI SURANA Advocates for the Petitioners : Mr. K.K. Mahanta, Sr. Adv.
: Mr. M. Pathak, Mr. K.M. Mahanta.
Advocates for the Respondents : Mr. D.P. Bora, Mr. A.J. Sarma, : Mr. S.K. Ghosh, Mr. G. Alam, : Mr. H. Rahman.
Date of hearing : 14.07.2017.
Date of judgment and order : 02.08.2017.
JUDGMENT AND ORDER (CAV)
Heard Mr. K.K. Mahanta, learned Senior Counsel assisted by Mr. M. Pathak, learned counsel appearing for the petitioner. Also heard Mr. S.K. Ghosh, the learned counsel appearing for the respondent.
2) The respondent herein, namely Md. Abdur Rahman is the plaintiff in TS 41/2008, which was, inter-alia, filed for declaration of title, recovery of possession, mesne profit, compensation for damage, etc., and for partition of suit land.
3) In course of trial, the petitioner- defendant filed a petition under Order XI Rule 14 read with section 151 CPC for directing the respondent- plaintiff to CRP 63/2017 Page 1 of 9 produce the original receipt of acknowledgement of Rs.30,000/-, which was allegedly in the custody of the respondent. By filing written objection, the respondent denied the same. The learned trial court, by order dated 01.07.2016 held that the said document is not in the custody of the respondent- plaintiff.
4) The petitioner then filed another petition under section 63 and 65 of the Evidence Act, 1872to allow secondary evidence of receipt of acknowledgement dated 24.07.2015 of Rs.30,000/-. The said petition was numbered as Petition No. 1413/16 dated 01.07.2016.The respondent objected to it by filing written objection. The learned trial court, by order dated 31.10.2016 held the photocopy of the said document to be inadmissible and the petition was rejected. The said order dated 31.10.2016 passed by the learned Civil Judge, Nagaon in TS 41/2008 is assailed in the present application under Article 227 of the Constitution of India. The only question which is urged for decision before this court is whether the learned trial court below had committed jurisdictional error in rejecting the petition for secondary evidence under section 63 and 65 of the Evidence Act in respect of a money receipt.
5) The learned Senior Counsel for the petitioner has referred to the statements made in paragraph 4 of this instant application and has submitted that during the pendency of the suit, there was a public meeting of the villagers on 24.07.2013, where the respondent-plaintiff took a sum of Rs.30,000/- from the petitioner- defendant No.1 in the presence of local people and issued written receipt of acceptance of Rs.30,000/- by putting his signature on revenue stamped money receipt. It is projected that thereafter the respondent- plaintiff sold the suit land vide registered Sale Deed No. 621/2013 dated 08.10.2013 to the two sons of the petitioner, namely, Md. Abdul Mannan and Md. Habibur Rahman. The said suit was fixed for conciliation, but as the respondent- plaintiff did not appear in the Lok Adalat, the suit proceeded for trial. It is stated that at the stage of evidence, the respondent- plaintiff amended the plaint and by arraying the said two sons of the petitioner as Plaintiff No.2(a) and 2(b) and CRP 63/2017 Page 2 of 9 denied the execution of the said Sale Deed No. 621/13 and prayed for declaration of the said sale deed as void and liable to be cancelled. The petitioner- defendant No.1 filed his additional Evidence- on- affidavit and he is not yet cross- examined.
6) It is submitted that the original revenue stamped money receipt was retained by the respondent- plaintiff for submitting it before the Court at the time of compromise. As the respondent- plaintiff did not submit the same on record, the petitioner filed a petition under the provisions of Order XI Rule 14 read with section 151 CPC for a direction to the respondent- plaintiff to produce the said revenue stamped money receipt dated 24.07.2013 for Rs.30,000/-, which was dismissed as indicated above. Thereafter, the petitioner filed petition No. 1413/16, which was also dismissed by order dated 01.07.2016. The said order is impugned herein.
7) It is submitted that as the original document is not produced and not available, the petitioner has a right to prove the document by leading secondary evidence. It is submitted that as the petitioner was holding a photocopy, and such a document is squarely covered by the provision of Section 63(2) of the Evidence Act, 1872, as accuracy thereof was assured. It is further submitted the respondent is not producing it, is also a situation, which is squarely covered by Section 65(a) of the Evidence Act, 1872. Hence, it is submitted that the learned court below had committed jurisdictional error in rejecting his petition No. 1413/16 by the impugned order.
8) Per contra, the learned counsel for the respondent, by referring to the photocopy of the alleged money receipt, which has been annexed to the present application, has submitted that the respondent- plaintiff had issued a money receipt for compensation of Rs.30,000/- and on receipt of the suit land to (1) the petitioner- defendant No.1, namely, Md. Afajuddin son of Md. Talimuddin and (2) Md. Jamaluddin, son of Md. Talimuddin. It is submitted that if anyone should be CRP 63/2017 Page 3 of 9 holding the said money receipt would be the ones paying the respondent- plaintiff and that the respondent, being the issuer of the money receipt cannot be presumed to be holding over the original money receipt, which includes the recital of receiving possession of the suit land also. It is stated that if the petitioner does not have it, then Md. Jamaluddin must be having it, but the said person is not a party in the present application. It is submitted that the plea was only a ploy to delay the trial of the suit and, as such, it is prayed that the present application be dismissed.
9) Having heard the learned counsels appearing for both sides, this court has perused the materials on record.
10) It is observed that as per the photocopy of the alleged money receipt, which has been annexed to the present application, the respondent- plaintiff had issued a money receipt for compensation of Rs.30,000/- and on receipt of the suit land to (1) the petitioner- defendant No.1, namely, Md. Afajuddin son of Md. Talimuddin and (2) Md. Jamaluddin, son of Md. Talimuddin. However, the said other brother of the petitioner has neither joined in this application as one of the petitioners, nor the said person has been arrayed as respondent. Moreover, as per the disputed photocopy, the money was received from two persons, but in paragraph 4 of the present application, it is projected that the money was received from the petitioner herein. There is a conspicuous absence of any positive statement in this application that the other brother, namely, Md. Jamaluddin did not have the money receipt.
11) In context of the refusal by the learned trial court to allow the petitioner to lead secondary evidence in respect of the document i.e. money receipt, it would be pertinent to refer to the provisions of sections 63, 65, 104 and 136 of the Evidence Act, 1872, which reads as follows:-
CRP 63/2017 Page 4 of 9"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;
(5) Oral accounts of the contents of a document given by some person who has himself seen it.
I llustrations
(a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original.
(b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original.
(c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence; but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original.
(d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine-copy of the original, is secondary evidence of the original.CRP 63/2017 Page 5 of 9
65. Cases in w hich secondary evidence relating to docum ents m ay 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 to be given in evidence;
(g) when the originals consists 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 CRP 63/2017 Page 6 of 9 documents by any person who has examined them, and who is skilled in the examination of such documents.
104. Burden of proving fact to be proved to m ake evidence adm issible.--The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence.
I llustrations
(a) A wishes to prove a dying declaration by B. A must prove B's death.
(b) A wishes to prove, by secondary evidence, the contents of a lost document. A must prove that the document has been lost.
106. Burden of proving fact especially w ithin know ledge.-- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
I llustrations
(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him."
12) Therefore, from the above, it is clear that as per Illustration (b) to Section 104, if one wishes to prove, by secondary evidence, the contents of a lost document, he must first prove that the document is lost. Moreover, as per Illustration (b) to Section 136 that the fact that the document is lost must be proved by the person proposing to produce the copy, before the copy is produced. Other circumstances for allowing secondary evidence are under Section 65 of the Evidence Act, 1872.
CRP 63/2017 Page 7 of 913) No material has been produced to show that there has been any attempt to show before the learned Trial Court that the alleged receipt has been lost or that it was not held by the other brother of the petitioner, namely, Md. Jamaluddin, the factual foundation of the said document having been lost has not been laid. As pointed out earlier, the stand of the petitioner that he had paid the sum of Rs.30,000/- to the respondent is found to be contradictory to the contents of the said photocopy, where it is stated that money was received from the first party i.e. the petitioner as well as his brother, Md. Jamaluddin. The learned Senior Counsel for the petitioner had submitted that the case of the petitioner was covered by section 65(a) of the Evidence Act, 1872. In this regard, it is seen that while dismissing the petition under Order XI Rule 14 CPC by order dated 01.07.2016, the learned trial court had categorically held that held that the said document is not in the custody of the respondent- plaintiff. The said finding, which has taken away the foundation of section 65(a) of the Evidence Act, 1872 has been allowed to attain finality. Thus, in the opinion of this court, the foundation for adducing secondary evidence is found to be absent in the present case in hand.
14) Therefore, this court does not find any legal infirmity or jurisdictional error in the impugned order dated 31.10.2016, passed by the learned Civil Judge, Nagaon in T.S. No. 41/2008. Hence, this revision is dismissed.
15) There shall be no order as to cost. 16) Before parting with the records, it is clarified that the observations
made by this court is confined only for the purpose of this order, which ought not to be construed to be a comment on the merit or the evidentiary value of the said document i.e. receipt for Rs.30,000/-, which has not been gone into by this Court. Hence, the learned trial court shall not be influenced by any observations made herein.
CRP 63/2017 Page 8 of 917) The parties shall appear before the learned trial court on 17.08.2017 without any further or separate notice for appearance and by producing the certified copy of this order, seek further instructions from the said learned Court.
JUDGE Mkumar CRP 63/2017 Page 9 of 9