Himachal Pradesh High Court
Sh. Suresh Kumar And Others vs Smt. Sumitra Devi And Others on 20 December, 2018
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 268 of 2017 Decided on: December 20, 2018 .
_____________________________________________________________ Sh. Suresh Kumar and others .. Petitioners Versus Smt. Sumitra Devi and others ..........Respondents _____________________________________________________________ Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
of Whether approved for reporting? 1 yes. _____________________________________________________________ For the petitioners : Mr. Deepak Kaushal, Advocate.
For the respondents
rt : Mr. Abhishek Sood, Advocate.
_____________________________________________________________ Sandeep Sharma, Judge:(oral) Being aggrieved and dissatisfied with order dated 31.5.2017, passed by the learned Civil Judge (Senior Division), Nahan, District Sirmaur, Himachal Pradesh in Civil Suit No. 88/1 of 07/16 titled Sumitra Devi vs. Suresh Kumar, whereby an application under S.65 of the Indian Evidence Act (hereinafter, 'Act') having been filed by the petitioner-
defendants (hereinafter, 'defendants'), seeking therein permission to lead secondary evidence, came to be dismissed, defendants have approached this court in the instant proceedings filed under Art. 227 of the Constitution of India read with S.151 CPC, praying therein to set aside the 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 26/12/2018 22:43:19 :::HCHP 2impugned order referred to herein above and to allow their application filed under S.65.
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2. Facts, as emerge from the record are that the respondents-plaintiffs (hereinafter, 'plaintiffs') filed a suit for declaration and consequential relief of permanent prohibitory injunction, against the defendants to the effect that the of plaintiff No.1 is the legally wedded wife of deceased Roop Singh and co-owner-in-possession to the extent of half share in the land, as described in the plaint (hereinafter, 'suit land'), on the rt basis of inheritance. Defendants, by way of written statement, refuted the aforesaid claim put forth by the plaintiffs and claimed that Gian Dei, mother of the defendants, was legally wedded wife of Roop Singh as such, plaintiff No.1 Sumitra Devi has no right, title or interest over the suit land.
3. During the pendency of the suit, defendants, with a view to prove the factum with regard to dissolution of marriage inter se deceased Roop Singh and plaintiff No.1 Sumitra Devi, filed an application under S. 65 of the Act (Annexure P-1), seeking therein permission of the court to lead secondary evidence. Defendants averred in the application that during the pendency of the suit, defendants summoned pension record from the Army, who sent Photostat copies of the said documents, perusal whereof disclosed that the plaintiff-
::: Downloaded on - 26/12/2018 22:43:19 :::HCHP 3Sumitra Devi had executed document of divorce (Reet) with late Roop Singh. Defendants also averred in the application .
that document sent by the Army authorities also contained a letter/certificate of authenticity of the divorce deed between Sumitra Devi and Roop Singh, issued by the then Pradhan, Gram Panchayat concerned. It also contained certificate issued of by the District Collector, Sirmaur about impounding of divorce deed on charging of stamp duty and penalty.
4. Defendants further averred in the application that rt they having noticed aforesaid documents, summoned aforesaid record from the Army authorities and accordingly, Naik Karamvir Singh (DW-4) appeared on 14.1.2014 and tendered Photostat copies of the documents referred to herein above and stated that the original documents stand destroyed after expiry of prescribed period of retention. In the aforesaid background, defendants prayed that they be permitted to lead secondary evidence to prove the documents tendered on record by Naik Karamvir Singh (DW-4) by way of secondary evidence.
Aforesaid application came to be hotly contested by the plaintiffs, who, by way of reply, seriously disputed the genuineness and correctness of the documents, intended to be proved by leading secondary evidence, especially dissolution deed. Plaintiffs averred that the documents, if any, received by ::: Downloaded on - 26/12/2018 22:43:19 :::HCHP 4 the court can not be said to be genuine being Photostat copies. Plaintiffs also stated in the reply that DW-4 has made .
unbelievable statement to the effect that the originals have been destroyed because he has not brought any evidence, with regard to destruction of the documents tendered by him in evidence.
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5. Learned Court below, on the basis of pleadings adduced on record by respective parties, framed following issues: rt "1. Whether the documents referred above, exist? OPA
2. Whether those documents have been destroyed, as claimed by the applicants? OPA.
3. Relef."
6. Subsequently, the learned Court below, after affording opportunity to both the parties to lead evidence in support of their respective claims, passed order dated 31.5.2017, whereby, application having been filed by the defendants under S.65, seeking therein permission to lead secondary evidence, came to be dismissed. In the aforesaid background, defendants have approached this court in the instant proceedings.
7. Having heard the learned counsel representing the parties and perused the material available on record vis-à-vis reasoning assigned by the learned Court below, while passing ::: Downloaded on - 26/12/2018 22:43:19 :::HCHP 5 impugned order, this court finds considerable force in the argument of Mr. Deepak Kaushal, Advocate, that at the stage .
of filing application under S.65, court below only ought to have seen the evidence with regard to existence of the documents, intended to be proved by way of secondary evidence and not the execution of the same. However, in the instant case, of careful perusal of the impugned order suggests that the court below has gone astray, because factum with regard to non-
production of evidence by defendants, especially, DW-4, Naik rt Karamvir Singh, with regard to destruction of documents, after expiry of statutory period of 25 years, has weighed heavily with the court below, while dismissing the application filed by the defendants, for leading secondary evidence.
8. It is not in dispute that DW-4 Naik Karamvir Singh was summoned by the court on the request of the defendants.
It is also not in dispute that the documents intended to be proved by way of secondary evidence were tendered in evidence by DW-4, while deposing before the court below, as DW-4, as such, there is no force in the argument having been raised by Mr. Abhishek Sood, learned counsel representing the plaintiffs that very correctness and genuineness of the documents tendered in evidence by DW-4 is doubtful. Veracity /correctness of the documents, if any, is not to be seen at this ::: Downloaded on - 26/12/2018 22:43:19 :::HCHP 6 stage, but that has to be seen at the time of leading secondary evidence, because, admittedly, documents intended to be .
proved on record by way of secondary evidence are required to be proved in accordance with law. Mere exhibition, if any, of the documents, would not prove the same or correctness thereof, rather, it is to be proved in accordance with law. No of doubt, cross-examination conducted by the plaintiffs on DW-4 reveals that DW-4 Naik Karamvir Singh was unable to state that when original record of documents tendered in evidence rt by him, was destroyed and he was also unable to place on record evidence, if any, with regard to destruction of such documents, but that could not be a ground for the court below to reject the application. Defendants, by examining DW-4 and making him tender documents, which they intend to prove by secondary evidence, successfully proved on record existence of the documents, having probative value, which is a condition precedent for leading secondary evidence.
9. S.65 of the Act deals with a situation/circumstance under which secondary evidence relating to documents can be given to prove condition or contents of documents. If S.65 is read in its entirety, it reveals that secondary evidence can be led if original of the documents intended to be produced by secondary evidence, is destroyed or lost or when the party ::: Downloaded on - 26/12/2018 22:43:19 :::HCHP 7 offering evidence of its contents cannot, for any other reason, not arising from his own default or neglect, produce it in .
reasonable time. Party intending to produce secondary evidence requires to 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 of by the party in respect of that document cannot be accepted.
10. In the case at hand, defendants, who intend to prove the document by way of secondary evidence, have successfully rt established on record that the document intended to be proved by them by way of secondary evidence, have been lost, factum whereof stands duly established by way of statement of DW-4, Naik Karamvir Singh, who in his statement has categorically stated that record pertaining to document stands weeded out, after expiry of prescribed period of 25 years.
11. At the cost of repetition, it may be observed here that though it has come in the statement of Naik Karamvir Singh that he has brought Photostat copies, but, perusal of documents placed on record, suggests that they are duplicate copies of the original, save and except one document i.e. dissolution deed, which has been marked as "DA".
12. At this stage, it would be profitable to place reliance upon the judgment rendered by the Hon'ble Apex Court in ::: Downloaded on - 26/12/2018 22:43:19 :::HCHP 8 Rakesh Mohindra versus Anita Beri and others, 2016(16) SCC 483, wherein it has been held as under:-
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"14. Section 65 of the Act deals with the circumstances under which secondary evidence relating to documents may be given to prove the existence, condition or contents of the documents. For better appreciation Section 65 of the Act is quoted herein below:- "65. Cases in which secondary evidence relating to documents may be given: Secondary evidence may be given of the existence, condition, or of 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 rt 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 ::: Downloaded on - 26/12/2018 22:43:19 :::HCHP 9 other law in force 40[India] to be given in evidence ;
(g) when the originals consist of numerous .
accounts or other documents which cannot conveniently be examined in court and the fact to be proved it 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 of certified copy of the document, but no other kind of secondary evidence, admissible. In case (g), evidence may be given as to the general result of the documents by any rtperson who has examined them, and who is skilled in the examination of such documents."
15. The preconditions for leading secondary evidence are that such original documents could not be produced by the party relied 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 documents 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 accepted.
16. The High Court in the impugned order noted the following :(Anita Beri vs. Rakesh Mohindra SCC Online HP 4258 para-9) "9. There is no averment about Ext. DW-2/B in the Written Statement. The Written Statement was filed on 19.2.2007. DW-2/B infact is only a photocopy. The plaintiffs are claiming the property on the basis of a registered will deed executed in her favour in the year 1984. It was necessary for the defendant to prove that ::: Downloaded on - 26/12/2018 22:43:19 :::HCHP 10 in what manner the document dated 24.8.1982 was executed. The defendant while appearing as AW-1 has admitted in his cross-examination that except in his .
affidavit Ext. AW-1/A, he has not mentioned in any document that the letter of disclaimer was executed by Justice late Sh. Tek Chand in his presence. The statement of DW-2 does not prove that Ext. DW-2/A, ever existed. DW-2 Sh. Gurcharan Singh, has categorically admitted in his cross-examination that he has not brought the original of Ext. DW- 2/B. He has of also admitted that on Ext. DW-2/B, the signatures of P.C. Danda were not legible. Volunteered that, those were not visible. The learned trial Court has rt completely misread the oral as well documentary evidence, while allowing the application as the under Section 65 of the Indian Evidence Act, 1872, more particularly, the statements of DW- 2 Gurcharan Singh and DW-3 Deepak Narang. The applicant has miserably failed to comply with the provisions of Section 65 of the Indian Evidence Act, 1872. The learned trial Court has erred by coming to the conclusion that the applicant has taken sufficient steps to produce document Ext. DW- 2/B."
17. The High Court, following the ratio decided by this Court in the case of J. Yashoda vs. Smt. K. Shobha Rani, AIR 2007 SC 1721 and H. Siddiqui (dead) by lrs. vs. A. Ramalingam, AIR 2011 SC 1492, came to the conclusion that the defendant failed to prove the existence and execution of the original documents and also failed to prove that he has ever handed over the original of the disclaimer letter dated 24.8.1982 to the authorities. Hence, the High Court is of the view that no case is made out for adducing the secondary evidence.
::: Downloaded on - 26/12/2018 22:43:19 :::HCHP 1118. The witness DW-2, who is working as UDC in the office of DEO, Ambala produced the original GLR register. He has produced four sheets of paper including a photo copy of .
letter of disclaimer. He has stated that the original documents remained in the custody of DEO. In cross- examination, his deposition is reproduced hereinbelow:-
"xxxxxxxx by Sh. M.S. Chandel, Advocate for the plaintiff No.2. I have not brought the complete file along with the record. I have only brought those documents which were summoned after taking up the of documents from the file. As on today, as per the GLR, Ex.DW- 2/A, the name of Rakesh Mohindra is not there. His name was deleted vide order dated rt 29.8.2011. I have not brought the original of Ex.DW-
2/B. It is correct that Ex.DW-2/D does not bear the signatures of Sh. P.C. Dhanda. Volunteered.: These are not legible. Ex.DW-2/C is signed but the signatures are not leible. On the said document the signatures of the attesting officer are not legible because the document became wet. I cannot say whose signatures are there on these documents. On Ex.DW-2/E the signatures at the place deponent also appears to have become illegible because of water.
Ex.DW-2/F also bears the faded signatures and only Tek Chand is legible on the last page. It is incorrect to suggest that the last page does not have the signatures of the attesting authority. Volunteered:
These are faded, but not legible. The stamp on the last paper is also not legible. There is no stamp on the first and second page. In our account, there is no family settlement, but only acknowledgement of family settlement. I do not know how many brothers Rakesh Mohindra has. It is correct that the original of Ex.DW- 2/H does not bear the signatures of Sh. Abhay Kumar. I do not know whether Sh. Abhay Kumar Sud and ::: Downloaded on - 26/12/2018 22:43:19 :::HCHP 12 Rakesh Mohindra are real brothers. The above mentioned documents were neither executed nor prepared in my presence. It is incorrect to suggest that .
the above mentioned documents are forged. It is incorrect to suggest that because of this reason I have not brought the complete file."
19. In Ehtisham Ali v. Jamma Prasad 1921 SCC OnLine PC 65 a similar question came for consideration as to the admissibility of secondary evidence in case of loss of primary evidence. Lord Phillimore in the judgment of observed:(SCC Online PC) " It is, no doubt, not very likely that such a deed would be lost, but in ordinary cases, if the witness in whose rt 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."
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 an exhibit of a document dispense with its proof, which is otherwise required to be done in accordance with law."
13. Reliance is also placed on judgment of the Hon'ble Apex Court in Nawab Singh v. Inderjit Kaur, (1994) 4 SCC 413, wherein it has been held as under:
::: Downloaded on - 26/12/2018 22:43:19 :::HCHP 13"3. Having heard the learned counsel for the parties, we are of the opinion that the trial court was not justified in .
rejecting the prayer seeking leave of the court for production of secondary evidence. The prayer has been rejected mainly on the ground that the copy of the rent note sought to be produced by the appellant was of doubtful veracity. The trial court was not justified in forming that opinion without affording the appellant an of opportunity of adducing secondary evidence. The appellant has alleged the original rent to be in possession of the respondent. The case was covered by Clause (a) of Section 65 of the Indian Evidence Act, 1872. rt
5. The appeal is allowed. The impugned order of the trial court dated 3.2.98 and the order of the High Court dated 16.9.98 passed in revision are both set-aside. The appellant is granted leave of adducing secondary evidence of the existence, condition and contents of the rent note dated 23.9.1994. The trial court shall appoint a date on which the appellant shall have the liberty of adducing such secondary evidence as he may choose to do but if he fails to adduce such evidence on the appointed date, he shall not be entitled to an adjournment for the purpose.
The appellant shall also be liable to pay costs quantified at Rs. 5000/- (Rupees five thousand only) to the respondent, having regard to all the circumstances."
14. It clearly emerges from the aforesaid judgment that the question with regard to genuineness/doubtful veracity of the document intended to be produced by way of secondary evidence is not to be seen at the time of seeking permission to ::: Downloaded on - 26/12/2018 22:43:19 :::HCHP 14 lead secondary evidence, rather, that would be considered at the time of leading secondary evidence and trial.
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15. In Rakesh Mohindra(supra), Hon'ble Apex Court has held that if a party wishes to lead secondary evidence, court is obliged to examine probative value of the document produced in the Court or their contents and decide the question of of admissibility of a document in secondary evidence. In the case at hand, defendants by way of bringing certain document to the fore have been able to establish the factum with regard to rt existence of certain documents, suggestive of the fact that deceased Roop Singh had divorced Sumitra Devi. Documents further reveal that Roop Singh during his life time had nominated mother of the defendants as his nominee in the pension papers, as such, it can not be said that the documents intended to proved by secondary evidence have no probative value, rather, same may be of great relevance for the proper adjudication of the case, if proved in accordance with law. In the aforesaid judgment, Hon'ble Apex Court has held that neither mere admission of a document in evidence amounts to its proof nor mere making of an exhibit of a document dispense with its proof, which is otherwise required to be done in accordance with law, as such, this court finds that no prejudice would be caused to the opposite party in ::: Downloaded on - 26/12/2018 22:43:19 :::HCHP 15 case defendants are permitted to lead secondary evidence, because document intended to be placed on record by way of .
secondary evidence, would, in any circumstance, be required to be proved in accordance with law and opportunity of rebuttal shall also be provided to the opposite party.
16. No doubt, there can be no quarrel with the law settled of by the Hon'ble Apex Court in Benga Behera v. Braja Kishore Nanda, (2007) 9 SCC 728, to the extent that positive evidence is required to be brought on record by the party intending to rt lead secondary evidence that the document intended to be produced by secondary evidence has been lost or destroyed, but, in the case at hand, as has been discussed above in detail, defendants by examining DW-4, Naik Karamvir Singh, have successfully established on record that documents intended to be proved by leading secondary evidence, are in existence but they have been lost/destroyed, rather, factum with regard to existence of such documents only came to the knowledge of the defendants, when certain documents were made available to them by the Army authorities, immediately whereafter, defendants got the army official summoned in the court, who subsequently, while deposing as DW-4, placed on record certain documents.
::: Downloaded on - 26/12/2018 22:43:19 :::HCHP 1617. Accordingly, in view of the detailed discussion made hereinabove and law laid down by the Hon'ble Apex Court, .
present petition is allowed. order dated 31.5.2017 passed by the learned Civil Judge (Senior Division), Nahan, District Sirmaur, Himachal Pradesh in the application under S.65 of the Act filed by the defendants, in Civil Suit No. 88/1 of of 07/16, is quashed and set aside. However, observations made herein above, shall have no bearing on the merits of the suit in question, which shall be decided on its own merits, and rt observations made herein above shall remain confined to the disposal of the instant petition.
18. Since the suit is hanging fire since long, this court hopes and trusts that the learned trial Court shall conclude the trial as expeditiously as possible, preferably within six months from today. Parties undertake to appear before the learned trial Court on 2.1.2019. Registry of this court to convey this order to the learned Court below enabling it to proceed further with the matter.
Pending applications, if any, are disposed of.
Interim direction, if any, is vacated. Record, if received, be sent back forthwith.
(Sandeep Sharma) Judge December 20, 2018 (vikrant) ::: Downloaded on - 26/12/2018 22:43:19 :::HCHP