Punjab-Haryana High Court
Bhagwan Sarup vs Jagdish Kumar Jain And Ors. on 10 December, 1999
Equivalent citations: (2000)124PLR858, 2000 A I H C 1373, (2000) 2 CIVILCOURTC 162, (2000) 1 ICC 324, (2000) 124 PUN LR 858, (2000) 2 RECCIVR 246
Author: Iqbal Singh
Bench: Iqbal Singh
JUDGMENT Iqbal Singh, J.
1. This revision has been preferred by the defendant-petitioner against the order passed by the trial Court whereby application filed by the plaintiff-respondent Nos. 1 and 2 for leading secondary evidence was allowed.
2. A suit is pending between the parties for specific performance of the contract with consequential relief of permanent injunction. During the pendency of the said suit, an application was moved by the plaintiff-respondent Nos. 1 and 2 for leading secondary evidence stating that the original agreement to sell dated 4.11.1989 as well as original applications dated 26.6.1990 and 5.7.1990 moved by them for getting their presence marked before the Sub-Registrar have been misplaced and that photo-stat copies of the same are in possession of the plaintiff-respondent Nos. 1 and 2. It was further stated that the plaintiffs tried to search the said original documents, but the same could not be traced.
3. This application was opposed by the defendant-petitioner on the ground that the allegation of misplacement of original documents is wrong and an afterthought. The plaintiffs availed several opportunities to lead their evidence, but thereafter the present application was moved on wrong and false facts. It was further stated that the application is not maintainable' as it is not covered under the provisions of Section 65 of the Indian Evidence Act, 1872 (hereinafter referred to as 'the Act').
4. I have heard Mr. Rajneesh Narula, learned counsel for the defendant-petitioner and Mr. Raman Mahajan, learned counsel for the plaintiff-respondents and have gone through the records of the case.
5. It is well-settled principle of law that secondary evidence can be allowed under Section 65 of the Act when the conditions enumerated therein are fulfilled. Section 65 of the Act, for facility of reference, is reproduced hereunder:-
"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 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 India to be given in evidence;
(g) When the original 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 documents 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."
6. In the present case, the original documents i.e. agreement to sell dated 4.11.1989 as well as applications dated 26.6.1990 and 5.7.1990 which were allegedly moved by the plaintiff-respondent Nos. 1 and 2 for getting their presence marked before the Sub Registrar, are stated to have been misplaced. Before allowing secondary evidence in respect of any document the original of which has been destroyed or lost, the Court is to satisfy itself that 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. However, the plaintiff-respondents, in the instant case, have not been able to bring on record the proof of loss of the documents in question, nor any reason has been put forth for not producing the documents in reasonable time inasmuch as the agreement to sell being dated 4.11.1989, it must be well within the knowledge of the plaintiff-respondent Nos. 1 and 2 at the time of filing of the present suit whether the same was in their possession or not, or that the same had been misplaced/lost. But it was only after availing several opportunities for adducing evidence that the application under Section 65 of the Act by the plaintiff-respondent Nos. 1 and 2 for leading secondary evidence in respect of the said agreement to sell dated 4.11.1989 and applications allegedly made before the Sub-Registrar on 26.6.1990 and 5.7.1990 for getting their presence marked, was moved. In these circumstances, the plaintiff-respondent Nos. 1 and 2 have not been able to satisfy the conditions as enumerated in Section 65 of the Act. The order of the trial Court whereby it allowed secondary evidence in respect of the above said documents, therefore, cannot be sustained.
7. For the aforesaid reasons, this revision petition deserves acceptance. The same, is accordingly allowed and the impugned order dated 4.3.1999 passed by the Civil Judge (Junior Division), Kurukshetra, is set aside. The trial Court is directed to proceed further with the case according to law.