Jharkhand High Court
Tajmul Ansari vs Basant Narain Singh on 28 May, 2020
Equivalent citations: AIR 2020 JHARKHAND 128, AIRONLINE 2020 JHA 537
Author: Rajesh Shankar
Bench: Rajesh Shankar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 6270 of 2018
1. Tajmul Ansari
2. Mubarak Ansari
3. Ajmul Ansari ..... Petitioners
Versus
1. Basant Narain Singh
2. Bateshwar Narain Singh
3. Bibi Nashiman ..... Respondents
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CORAM HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioners: Mr. Pratyush Kumar
For the Respondents:
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08/28.05.2020 The case is taken up through Audio/Video conferencing.
2. The present writ petition has been filed for quashing the three orders i.e. dated 13.07.2018 (Anneuxre-6 to the writ petition) passed by the Civil Judge (Sr. Div.)-III, Hazaribagh, dated 21.04.2015 (Annexure-5 to the writ petition) passed by the Senior Civil Judge-IV, Hazaribagh and dated 08.08.2012 (Annexure-4 to the writ petition) passed by the Civil Judge (Sr. Div.)-V, Hazaribagh in T. S. No. 68 of 2004 whereby the learned Courts below have rejected the petitioners' prayer to adduce secondary evidence i.e. photocopy of 'Batwaranama'.
3. The factual background of the case, as stated in the writ petition, is that the plaintiff (the respondent No.1) instituted T. S. No. 68 of 2004 in the Court of the Sub-ordinate Judge-I, Hazaribagh seeking the following reliefs:-
"A. That by an adjudication the title of the plaintiff with respect to Schedule 'C' land be declared.
B. That by an adjudication it be declared that the sale deed No. 1715 dated 31.01.2001 executed by Bateshwar Narain Singh in favour of Bibi Nashiman is null and void, inoperative and not binding upon the plaintiff.
C. That the cost of the suit be also awarded to the plaintiff.
D. Any other relief or reliefs deem fit and proper be also passed in favour of the plaintiff."2
4. The defendant No.2 died during the pendency of the suit on 23.07.2005 and the petitioners were substituted as his heirs. The petitioners being the substituted defendants and the defendant No.1 (the respondent No.3) as well as the defendant No.3 (the respondent No.2) filed a petition dated 18.07.2012 to bring on record 'Batwaranama' dated 15.01.1972 as per law, but the same was rejected vide order dated 08.08.2012 passed by the Civil Judge (Sr. Div.)-V, Hazaribagh. Further, they filed a petition dated 23.08.2014 for granting leave to bring on record 'Batwaranama', but the same was rejected on 21.04.2015. They again filed a petition dated 15.05.2015 for granting leave to prove the photo copy of 'Batwaranama' dated 15.01.1972 as secondary evidence, but the same was also rejected vide order dated 13.07.2018 passed by the Civil Judge (Sr. Div.)-III, Hazaribagh.
5. Learned counsel for the petitioners submits that the learned Courts below failed to appreciate that the existence of the said 'Batwaranama' has been admitted. The petitioners have legal right to lead secondary evidence being the photocopy of the 'Batwaranama' dated 15.01.1972 in view of Sections 63 & 65 of the Indian Evidence Act, 1872 (hereinafter referred to as 'the Act, 1872'). If the impugned orders are allowed to stand, the same will not only cause serious prejudice but shall also cause irreparable injury and loss to the petitioners.
6. Heard learned counsel for the petitioners and perused the relevant materials available on record. It is evident from the record that the petitions were presented thrice before the learned Courts below to grant leave to admit the photocopy of 'Batwaranama' in the case. The first petition was presented on 18.07.2012 which was rejected by the learned Court below vide order dated 08.08.2012 observing that the photocopy of 'Batwaranama' has no evidentiary value and the genuineness of the said document has been challenged by the plaintiffs stating that the said document is a forged one. Thereafter, the defendants did not challenge the said order and kept silence for more than 2 years. They again filed a petition dated 23.08.2014 which was heard on 21.04.2015 and was rejected on the ground that though the defendants wanted 3 to adduce the photocopy of 'Batwaranama' dated 15.01.1972 as a secondary evidence, yet it has nowhere been mentioned by the defendants in the petition that the original 'Batwaranama' was in whose possession. It has further been held that the said 'Batwaranama' has been disputed by the plaintiff stating that the same is a forged one. The defendants again did not challenge the order dated 21.04.2015, rather filed another petition dated 15.05.2015. The said petition was heard on 13.07.2018 and again the prayer made by the defendants seeking leave to adduce 'Batwaranama' as secondary evidence was refused on the ground that the defendants were not able to show that the photocopy of the 'Batwaranama' dated 15.01.1972, which they wanted to adduce and make admissible by way of secondary evidence, was prepared from the original and further that as per the plaintiff, the said photocopy of the 'Batwaranama' is a forged one. Thus, the genuineness of the said 'Batwaranama' has been disputed by the plaintiff and to bring the said photocopy of the 'Batwaranama' as secondary evidence in record, the defendants were required to establish that at the time of preparing the photo copy of the said 'Batwaranama', they were in possession of the same, but they also failed to establish the same.
7. To appreciate the contention of learned counsel for the petitioners, it would be appropriate to go through the relevant provisions of the Indian Evidence Act, 1872 dealing with the provisions related to secondary evidence:-
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.
Illustrations 4
(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.
64. Proof of documents by primary evidence:- Documents must be proved by primary evidence except in the cases hereinafter mentioned.
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 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 5 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."
8. In view of the aforesaid provisions, it may be construed that the photocopy of an original is secondary evidence of its contents, if it is proved that the thing photographed was the original. Any document must be proved by primary evidence and only in the circumstances mentioned in Section 65 of the Act, 1872, the secondary evidence is admissible. Thus, the admissibility of secondary evidence is permissible only in certain exceptional circumstances. The party who wishes to lead secondary evidence of any private document, has to prove the circumstance enumerated under Section 65 of the Act 1872.
9. The Hon'ble Supreme Court in the case of Rakesh Mohindra Vs. Anita Beri & Ors. reported in (2016) 16 SCC 483 has held as under:-
"15. The preconditions for leading secondary evidence are that such original documents could not be produced by the party relying upon such documents in spite of best efforts, unable to produce the same which is beyond their control. The party sought to produce secondary evidence must establish for the non-production of primary evidence. Unless, it is established that the original document is lost or destroyed or is being deliberately withheld by the party in respect of that document sought to be used, secondary evidence in respect of that document cannot be accepted.
20. It is well settled that if a party wishes to lead secondary evidence, the court is obliged to examine the probative value of the document produced in the court or their contents and decide the question of admissibility of a document in secondary evidence. At the same time, the party has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. It is equally well settled that neither mere admission of a document in evidence amounts to its proof nor mere making of 6 an exhibit of a document dispense with its proof, which is otherwise required to be done in accordance with law.
21. In [M. Chandra v. M. Thangamuthu, (2010) 9 SCC 712] , this Court considered the requirement of Section 65 of the Evidence Act and held as under:
(SCC pp. 735-36, para 47) "47. We do not agree with the reasoning of the High Court. It is true that a party who wishes to rely upon the contents of a document must adduce primary evidence of the contents, and only in the exceptional cases will secondary evidence be admissible.
However, if secondary evidence is admissible, it may be adduced in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in another form. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It should be emphasised that the exceptions to the rule requiring primary evidence are designed to provide relief in a case where a party is genuinely unable to produce the original through no fault of that party."
"It is, no doubt, not very likely that such a deed would be lost, but in ordinary cases, if the witness in whose custody the deed should be deposed to its loss, unless there is some motive suggested for his being untruthful, his evidence would be accepted as sufficient to let in secondary evidence of the deed."
10. In the present case, the learned Courts below have repeatedly held that the defendants failed to prove that the photo copy of the 'Batwaranama' was prepared from its original and the plaintiff has also disputed the genuineness of the said photocopy. It has been further observed that the defendants have not disclosed as to the original one was in whose possession. The petitioners have thus failed to show any of the grounds enumerated under Section 65 of the Act, 1872 permitting them to lead secondary evidence.
11. Under the aforesaid circumstances, I find no infirmity in the impugned orders so as to interfere with the same in writ jurisdiction.
12. The present writ petition is, accordingly, dismissed.
Satish/A.F.R (RAJESH SHANKAR, J)