Gauhati High Court
Kumuda Sundari Sen Girls High School & 2 ... vs Dolan Saikia on 25 October, 2017
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
C.R.P NO. 189 of 2016
Kumuda Sundari Sen Girls' High School and
others ... Petitioners
-Versus-
Sri Dolan Saikia ... Respondent
BEFORE HON'BLE MR. JUSTICE KALYAN RAI SURANA For the petitioner : Mr. D. Medhi, Mr. PK Singha, Advocates For the respondent : Mr. P. Mahanta, Advocate Date of hearing : 01.09.2017 Date of judgment : 25.10.2017.
JUDGMENT AND ORDER (CAV) Heard Mr. D. Medhi, learned counsel for the petitioners as well as Mr. P. Mahanta, learned counsel for the respondent.
2) By filing this application under 227 of the Constitution of India, the petitioners have challenged the order dated 15.12.2015 passed by the leaned Munsiff No. 1, Sonitpur, Tezpur in Misc. (J) Case No. 144/2015, by which the application filed by the petitioners under CRP No.189/2016 Page 1 of 14 Section 65(c) of the Evidence Act, 1872 seeking permission to examine the concerned authority to prove that the 'chitha' relating to the suit land, which was reported to be "not available".
3) The necessary facts of the case is short. The respondent is the plaintiff in T.S. No. 14/2010 and the petitioners are the defendants in the said suit. In order to prove the draft 'chitha' relating to the suit land, the petitioners applied for a certified copy thereof from the concerned authority. The concerned authority i.e. the Circle Officer, Chariduar Revenue Circle did not issue a certified copy and in that regard, the said authority had issued a Certificate under No. C.D.R. 07/2011-12/409 dated 17.06.2014, stating therein as follows -
"This is to certify that the certified copy of draft chitha for the year 1992 in respect of land measuring 3 katha 17 lessa, covered by Dag No. 36 of P.T. No. 131 situated at village Molanpukhuri, Mouza Balipara, could not be furnished due to non-availability. This certificate is based on the report of the Lat Mandal."
4) Therefore, the petitioners filed an application before the learned trial court under Section 65(c) of the Evidence Act, 1872, which was numbered as 2402/14 dated 18.07.2014, praying to allow them to adduce secondary evidence of the said draft 'chitha' on the strength of the above referred certificate issued by the Circle Officer. The respondent herein filed his written objection and the learned trial court by order dated 05.11.2014, rejected 2402/14 dated 18.07.2014, rejected petition, firstly by disbelieving the photocopy of the draft 'chitha' on the ground that he did not bear the seal and signature of the office, secondly, on the ground that the certificate merely stated that the 'chitha' book was not available and, as such, it could not be presumed that the 'chitha' register book was destroyed/lost and thirdly CRP No.189/2016 Page 2 of 14 the petitioner had failed to show that he had exhausted all resources and means in search of original documents.
5) In view of the said order dated 05.11.2014, the petitioner filed another application under Section 65(c) of the Evidence Act, 1872, seeking permission to adduce secondary evidence of the draft 'chitha' after examining the Circle Officer, Chariduar Revenue Circle or any other person authorised on behalf to prove the loss or destruction of the original records of the said 'chitha'. The respondent filed his written objection and the learned trial court by order dated 15.12.2015, which is impugned herein, rejected the said application on the ground that the subsequent petition was barred by Section 11 explanation IV CPC.
6) The learned counsel for the petitioners submit that as per the scheme of the Evidence Act, 1872 there is no requirement of obtaining a prior leave of the trial court to introduce secondary evidence and, as such, if the condition precedent of introducing a secondary evidence of any document is present, the trial court is obliged to allow the party to adduce secondary evidence and the admissibility of the document may be decided by the court in accordance with law. It is further submitted that as the application of the petitioners was under Section 65(c) of the Evidence Act, 1872 the learned trial court was only required to satisfy itself as to whether the certificate issued by the concerned Circle Officer was genuine and to allow the petitioners to adduce secondary evidence on the document in question. It is stated that in view of the fact that the petitioners could only apply for a certified copy of the 'chitha', and if the concerned authority issues a certificate that the document was not available, the petitioner could do nothing more except to pray before the trial court to allow them to adduce secondary evidence of the document.
CRP No.189/2016 Page 3 of 147) It is submitted that as the trial court disbelieved the certificate issued by the Circle Officer merely on presuming that it could not be believed from the contents of the same that the 'chitha' register was lost or destroyed. It is submitted that the Circle Officer was the competent authority to submit whether the photocopy of the 'chitha' which the petitioners were seeking to prove was the photocopy of original document. It is submitted that the learned trial court had merely presumed that the copy available with the petitioners was not genuine in the absence of seal and signature without any actual proof or evidence on record in this regard, as such, the examination of the Circle Officer or his authorized person was necessary for the learned trial court to arrive at a just and proper decision on the matter. In support of his argument, the learned counsel for the petitioner has relied on the case of (i) Khemani Engineering Corporation Vs. General Manager, N.F. Railways and Ors., (2006) 2 GLR 709 (DB) and (ii) Shri Prem Chandra Jain (deceased) by LRs Vs. Shri Sri Ram (deceased) and Ors., (2009) 7 ILR Delhi 605 (print out of IndLawLib/794804).
8) Per contra, the learned counsel for the respondent submits that the photocopy of the draft 'chitha' was a manufactured document and that the certificate issued by the Circle Officer did not disclosed that the document was lost/destroyed, for which the foundation for introducing secondary evidence was not present. Arguing in support of the impugned order, it is submitted that as both the petitions were filed under Section 65(c) of the Evidence Act this was a clear case where the principle of res-judicata and/or constructive res- judicata would apply and the learned counsel for the respondent prays for dismissal of the present application. In support of his argument, the learned counsel for the respondent places reliance on the case of CRP No.189/2016 Page 4 of 14 Marwari Kumhar Vs. Bhagwanpuri Guru Ganeshpuri, AIR 2000 SC 2629: (2000) 6 SCC 735.
9) On hearing the learned counsel for both sides the following points of determination arises for consideration of this Court:
a. Whether the learned trial court committed any jurisdictional error by refusing to examine the Circle Officer, Chariduar Revenue Circle or other authorised person to prove the loss/ destruction of the original record of the draft 'chitha' in reference?
b. Whether the second application under Section 65(c) of the Evidence Act was barred by principles of res-judicata and/or constructive res-judicata?
10) This Court finds that in the present case in hand, the petitioners had applied before the competent authority for being provided with a certified copy of the draft 'chitha'. It is not in dispute that the Circle Officer, Chariduar Revenue Circle was not the competent authority to provide such certified copy. Moreover, the said authority did not state that the no certified copy of 'chitha' is permitted to be issued. However, the said authority is found to have issued a certificate to the effect that the certified copy of the concerned 'chitha' could not be furnished due to non availability. According to this Court, nothing more could be expected from the petitioners, who can only apply for a certified copy of 'chitha' from the concerned authority.
Therefore, although the order dated 05.11.2014, passed by the learned trial court is not under challenge, but this Court finds that the learned trial court had committed illegality in holding that the petitioners failed to show that they had exhausted all resource and means in search of the original document, as if the petitioners were the custodians of the public records of the 'chitha' and that the petitioners did not enough to CRP No.189/2016 Page 5 of 14 trance it out. The learned trial court appears to have totally failed to appreciate that the petitioners had no power or authority to conduct any search operation in the office of the Circle Officer or the office of Deputy Commissioner concerned to search out record of 'chitha' from their office and therefore, to hold that the petitioner had not exhausted all resource and means to search for the original documents appears to be something which impossible for the petitioners to do. Rather, the trial court did have the power to call for the original record of 'chitha' from the concerned authority after it had disbelieved the certificate issued by the Circle Office by holding that the "non availability" of the record of 'chitha' did not mean that the record was lost or destroyed. In the opinion of this Court, the jurisdictional error on part of the learned trial court is apparent on the face of the record because the learned trial court on the basis of conjunctures and surmises, interpreted the contents of the Certificate issued by responsible officer i.e. the Circle Office who is the custodian of such record to arrive at a finding that the certificate did not mean that the document was lost or destroyed. This could not have been held without recording any evidence in this regard.
11) According to this Court, a certificate issued by the Circle Officer that the record of 'chitha' was not available, satisfies the condition laid down in sub-clause (c) of Section 65 of the Evidence Act, 1872. The learned trial court appears to have not considered the provisions of Section 65(c) of Evidence Act, 1872, which reads as follows -
"65. Cases in which secondary evcidence 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) ...CRP No.189/2016 Page 6 of 14
(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;"
12) When a party applies for a certified copy and the concerned authority issues a certificate that the record is not available, under the circumstances, there is no default or negligence on part of the petitioners in this case. When the document is not available with the concerned authority, it cannot be the burden of the petitioners to produce the record. The certificate is good reason for not being able to produce the original and due to the non-availability of a public record, the petitioners are entitled to lead secondary evidence. Under the circumstances, instead of rejecting the application filed by the petitioners, the proper recourse for the learned trial court was to (i) either direct the petitioner to apply for fresh certificate from the Circle Officer as to whether the record of the 'chitha' was lost or destroyed; or (ii) to issue direction to the Circle Officer to produce the said public record or to clarify whether the public record was actually lost or destroyed; or (iii) to allow the petitioners to adduce secondary evidence. It is too well settled that a mere introduction of a document in evidence does not amount to proving of the document or as to the proof of its contents.
13) In the further opinion of this court, the petitioner had rightly applied before the learned trial court for examining the Circle Officer or his authorized person regarding the certificate issued by the said authority as to non-availability of the record of the draft 'chitha'. The procedural part of examining the Circle Officer who had issued a certificate of non-availability of a public record appears to be the CRP No.189/2016 Page 7 of 14 correct procedure which would enable the learned trial court to arrive at a truth. The non-availability of a public record is in itself a serious matter as to how a responsible public office is functioning when the original draft 'chitha' concerning the land record is not available. Moreover, if the Circle Officer is summoned he would have been the best person to give direct evidence as to whether the entry made in the register of draft 'chitha' contains any seal and signature of the concerned person which would enable the learned trial court to decide whether the secondary evidence could be relied upon by the said learned court.
14) In the present case in hand, the further jurisdictional error which the learned trial court had committed is that the learned court had pre- judged the admissibility of the secondary evidence even before it was introduced in evidence. The learned trial court seems to have over-looked the provisions of Proviso to sub-Rule (1) of Rule (4) of Order XVIII, which provide that the proof and admissibility of documents which are filed in the evidence on affidavit would subject to order of the court. In this connection it would be relevant to refer to paragraph 10 of the case of Marwari Kumhar (supra), referred to by the learned Counsel for the respondent, which is quoted below:
"10. Thus it is to seen that under Sub-clause (c) of Section 65, where the original has been lost or destroyed, then secondary evidence of the contents of the document is admissible. Sub-clause (c) is independent of Sub-clause (f). Secondary evidence can be led, even of a public document, if the conditions as laid down under Sub-clause (c) are fulfilled. Thus if the original of the public document has been lost or destroyed then the secondary evidence can be given even of a public document. This is the law as has been laid down by this Court in Mst. Bibi Aisha and Others Vs. The Bihar Subai Sunni Majlis Avaqaf and Others (AIR 1969 SC
253). In this case a suit had been filed for setting aside a CRP No.189/2016 Page 8 of 14 registered mokarrari lease deed and for restoration of possession of properties. The suit had been filed on behalf of a Waqf. The Original Waqf Deed was lost and an ordinary copy of the Waqf Deed was produced in evidence. The question was whether an ordinary copy was admissible in evidence and whether or not secondary evidence could be led of a public document. The Court held that u/s 65 Clauses
(a) and (c) secondary evidence was admissible. It is held that a case may fall both under Clauses (a) or (c) and (f) in which case secondary evidence would be admissible. It was held that Clauses (a) and (c) were independent of Clause (f) and even an ordinary copy would, therefore, be admissible.
As stated above the case that the original was no longer available in Court records and the certified copy was lost has not been disbelieved. Thus the ordinary copy of the earlier judgment was admissible in evidence and had been correctly marked as an exhibit by the trial court."
15) This Court finds that when the Circle Officer had certified that the record of 'chitha' was not available, under the circumstances, the question whether a document has been lost or destroyed becomes a question of fact, which can only determined after the concerned person who was issued a certificate is examined and cross-examined to find out the truth. In this regard, paragraph 2 to 8 of the case of Shri Prem Chandra Jain (supra) is reproduced below:
"2. A practice appears to have developed in the Trial Courts of moving an application u/s 65 of the Evidence Act seeking permission of the courts to adduce secondary evidence. There does not appear to be any sanction therefore in law. Neither the Evidence Act nor the CPC nor any other rules & regulations or statute requires the filing of such an application.
3. Section 61 of the Evidence Act provides for proof of documents either by primary or by secondary evidence. Section 64 provides that documents must be proved by primary evidence, except in cases "hereinafter mentioned"CRP No.189/2016 Page 9 of 14
i.e. in Section 65 & Section 65A and Section 65B. Section 65 permits secondary evidence to be led in the contingencies mentioned therein. Thus a litigant without seeking any permission from the court if satisfies the ingredients of Section 65 of the Evidence Act i.e. of the existence of the contingency or situation when secondary evidence is permitted to be led is entitled to lead such evidence. Such evidence will have to be two fold. Firstly, as to the existence of the contingency or situation in which secondary evidence is permissible, viz. that the original document is in possession or power of the person against whom it is sought to be proved etc. or that the existence, condition or contents of original have been proved to be admitted by person against whom it is sought to be proved or that the original has been lost or destroyed or when original is not moveable etc. i.e. of the various situations mentioned in Clause (a) to
(g) of Section 65. Secondly, such evidence will have to be in proof of document as also prescribed in Section 65 r/w Section 63.
4. It is only after such evidence has been led can the court form an opinion whether the circumstances/ situation in which it is permissible to lead secondary evidence exist or not. For instance, whether a document has been lost or destroyed is a question of fact. It is only after the person claiming so has been cross examined, can a decision be taken as to the existence and loss or destruction of the original.
5. The court, on an application seeking permission to lead secondary evidence, even if setting out reasons as contained in either of the Clauses of Section 65, cannot take a decision on the correctness of the reasons. The application thus serves no purpose except delaying the proceedings. It is however often found that the courts allow or disallow the applications, without giving an opportunity to the parties for laying a foundation for reception or rejection of secondary evidence. Such procedure is impermissible in law. Factual controversies cannot be adjudicated on applications. That is however not to be understood as allowing a mini-trial on this aspect. The party seeking to prove document by secondary CRP No.189/2016 Page 10 of 14 evidence is to lead evidence of the existence of circumstances/ situations in which secondary evidence is permissible, during leading its evidence, whether by way of examination of witnesses or cross examination of opponents witnesses, in the suit/other proceeding itself. It will be decided at the stage of disposal of suit only, whether case for leading secondary evidence has been made out or not and if so, whether document stands proved by secondary evidence.
6. As far as the reasoning given by the Trial Court in the present case is concerned, the trial court has understood the word "lost" in Section 65 as "irretrievably lost"; thus the plea of the petitioner of the document being "untraceable" has been held to be not a plea of "lost" and thus not covered by Section 65.
7. The meaning of lost in the Black's Law Dictionary 6th Edition is "An article is lost when the owner has lost the possession or custody of it, involuntarily and by any means, but more particularly by accident or his own negligence or forgetfulness, and when he is ignorant of its whereabouts or cannot recover it by an ordinarily diligent search".
8. This court in Laiqan Begam Vs. Abdul Hamid, (1979) RLR 545, held that "not traceable" or "lost", both enable the invocation of secondary evidence u/s 65 of the Act. I am also of the opinion that for invocation of Section 65, it is not necessary to take a stand that the document is lost, so as never to be found. It is sufficient to prove that the document is not available at the relevant time and its whereabouts are unknown then."
16) In the present case in hand, by refusing to examine the Circle Officer or the authorized person, the learned trial court had failed to address the question of fact as to whether the original record of draft 'chitha' was lost or destroyed, which goes to the root of the matter because the learned trial court had disbelieved the certificate issued by the Circle Officer that the documents being "not available"
did not mean that the document was lost or destroyed. Therefore, the CRP No.189/2016 Page 11 of 14 refusal to examine the Circle Officer is found to be vitiated by jurisdictional error. A litigating party cannot have any control over the words used by a public authority like a Circle Officer while issuing a certificate for not issuing certified copy and a party would be helpless if the authority used the words "non- availability of record" instead of using "record lost/ destroyed". The procedural law is to be treated as a handmaid of justice and not an instrument of oppression. In the present case in hand, the learned trial court, taking a hyper-technical view, has caused failure of justice by not examining the Circle Officer or his authorised person and thus, refusing to find out the truth.
17) On the basis of the discussions above, the point of determination (a) is answered to the effect the learned trial court had committed jurisdictional error by refusing to examine the Circle Officer, Chariduar Revenue Circle or other authorised person to prove the loss/ destruction of the original record of the draft 'chitha' in reference, which according to the certificate issued by the said authority, was "not available".
18) In the second application filed by the petitioner under Section 65(c) of the Evidence Act, 1872 which was rejected by the order impugned herein, it is seen that the petitioners have explained therein that as the certificate issued by the Circle Office was not accepted as a proof of loss/ destruction of original record of 'chitha', for which the examination of the Circle Officer was required. This prayer was not there in the previously filed petition No. 2402/14. The issue of examination of the Circle Officer was not in issue in the previous application. As already stated herein before that the application under Section 65(c) of the Evidence Act, 1872 being a procedural law must be construed to be a handmade of justice. The petitioner had earlier applied to adduce secondary evidence and CRP No.189/2016 Page 12 of 14 according to this Court, the conditions required for introducing secondary evidence of 'chitha' did exist. Therefore, whether the document is proved by secondary evidence can only by decided at the hearing of the suit. The petitioners did not anticipate that their application would be rejected. Therefore, under the present circumstances, this court is of the view that the learned trial court committed jurisdictional error in rejecting the subsequent petition under the principle of res-judicata and/or constructive res-judicata. According to this Court, prior to the introduction of secondary evidence, the admissibility of such evidence cannot be pre- determined and therefore, the principle of Section 11 cannot be made applicable in the present case in hand. The second point of determination is, accordingly, answered to the effect that the second application under Section 65(c) of the Evidence Act was not barred by principles of res- judicata and/or constructive res-judicata.
19) The case of Marwari Kumhar (supra) does not help the respondent in any way. Rather, on the principles of Section 65(c) of the Evidence Act, the said case appears to in the favour of the petitioners herein.
20) In view of the discussions above, the impugned order dated 15.12.2015 passed by the learned Munsiff No. 1, Sonitpur, Tezpur in Misc.(J) Case No. 144/2015 arising out of T.S. No. 14/2010 is hereby set aside. Notwithstanding, the order dated 05.11.2014, passed by the said learned court in T.s. No. 14/2010, the learned trial court shall now pass necessary consequential orders to summon the Circle Officer, Chariduar Revenue Circle or his duly authorized subordinate for being examined on 'non-availability' of the original record of the concerned draft 'chitha', covered by Certificate under No. C.D.R. 07/ CRP No.189/2016 Page 13 of 14 2011-12/409 dated 17.06.2014 and to permit the petitioners to adduce secondary evidence in respect of the said draft 'chitha', which would be subject to proof and admissibility of such secondary evidence to be decided at the time of final hearing of the case.
21) This application stands allowed to the extent as indicated above.
22) The parties are left to bear their own cost. 23) Both the parties, who are duly represented by their
respective counsels, are directed to appear before the Court of the learned Munsiff No.1, Sonitpur, Tezpur on 14.11.2017 without any further notice for appearance, and by submitting a certified copy of this order, seek further instructions from the said learned court.
JUDGE MKS CRP No.189/2016 Page 14 of 14