Punjab-Haryana High Court
Mangat Ram vs Prabhu Dayal And Ors. on 22 January, 2002
JUDGMENT M.M. Kumar, J.
1. This is a revision petition directed against the order dated 15.1.2002 passed by the Civil Judge (Junior Division), Karnal dismissing the application of the defendant/petitioner seeking permission to lead secondary evidence. It was asserted that there was a report submitted on 27.5.1998 by Jai Bhagwan, Kanungo after inspection of the site of the land wherein it was pointed out that Defendant-Petitioner was in cultivating possession. Further, averments in the appli-
cation were that clerk concerned from the office of the Deputy Commissioner, Karnal was summoned alongwith original application dated 1.5.1998, order passed by the Deputy Commissioner, Karnal dated 1.5.1998 on that application and order dated 4.5.1998 passed by the Tehsildar, Nilokheri and report of Jai Bhagwan, Kanungo dated 17.5.1998. It was reported that the original application, orders and report of Kanungo dated 27.5.1998 could not be traced out. Defendant/petitioner has pleaded that photocopy of the report be permitted to be proved as secondary evidence. It was in this situation that an application for leading secondary evidence was filed.
2. The Civil Judge dismissed the aforementioned application by recording the following order :-
"After consideration the contentions advanced by learned counsel for the parties and after perusal of case file, I am of the considered view that applicant/defendant has failed to prove that original application dated 1.5.98 and original report dated 27.5.98 have been lost or destroyed. I am also of the view that the applicant/defendant has also failed to prove that how he arranged photo copy of these original documents. On this point, I relied on the law laid down in Rajasthan Golden Transport Co. v. Lrs. of Amrit Lal (Supra). Therefore, the applicant is not entitled to adduce photo copy of the above said order and report by way of secondary evidence. Hence, the application is dismissed. Now, the case is adjourned to 19.1.2002 for rebuttal evidence, if any and arguments."
3. Shri Vikram Singh, learned counsel for the defendant/petitioner has argued that once the loss of document is proved then in pursuance of the provisions of Section 65 of Indian Evidence Act, 1872, the Court is obliged to allow adducing of.secondary evidence. He further submitted that once the report has come that documents were not traceable then it has to be presumed that those documents which were summoned have been lost or destroyed. For this proposition, he placed reliance on a judgment of this Court rendered in the case of Vardan Feed Mills v. S.S. Zombade, (2001-2) 128 P.L.R. 791 (S.C.). He further contended that proceedings under Section 145 Code of Criminal Procedure (for brevity, the Criminal Code) were undertaken, which would prove that report of the Kanungo Jai Bhagwan dated 27.5.1998 was relied upon in those proceedings.
4. A perusal of the order passed by the Civil Judge shows that primary reason for rejecting application as that defendant/petitioner failed to prove that how he arranged photo copies 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.
5. Insofar as the other contention of the Defendant/petitioner that proceedings under section 145 of the Criminal Code had made mention of the report of Kanungo dated 27.5.1998 does not require serious consideration because neither this was produced before the Civil Judge nor reference of those proceedings have been made in the impugned order, I am afraid in the revisional jurisdiction no new document/evidence could be produced, which was not taken into consideration by the trial Court. Therefore, I am unable to accept this argument and the revision petition is liable to be dismissed.
6. For the reasons recorded above, this revision petition fails and the same is dis missed in limine .