Rajasthan High Court - Jaipur
M/S Kota Fine Wood Works, Kotadi vs Nagar Vikas Nyas on 12 February, 2021
Author: Mahendar Kumar Goyal
Bench: Mahendar Kumar Goyal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 1032/2021
M/s Kota Fine Wood Works, Kotadi, Gordhanpura, Kota through
Proprietor, Rameshwar Saroja S/o Late Babulal R/o Kotadi, Kota
Rajasthan
----Plaintiff-Petitioner
Versus
Nagar Vikas Nyas, C.A.D. Chouraha, Kota
----Defendant-Respondent
For Petitioner(s) : Mr. R.P. Vijay
For Respondent(s) :
HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL
Order
12/02/2021
This writ petition is filed against the order dated 19.02.2020
passed by the learned Civil Judge (South), Kota, whereby, the
application filed by the petitioner-plaintiff under Section 65 of the
Indian Evidence Act, 1872 (for brevity, "the Act of 1872"), has
been dismissed.
Assailing the order, learned counsel for the petitioner
contended that the learned trial Court did not appreciate that the respondent did not file on record the original documents in spite of direction of the learned trial Court vide order dated 12.05.2017 on his application filed under Order 11 Rules 12 and 14 CPC and hence, he was left with no option to seek permission of the Court to lead secondary evidence with regard to the document in question. He, therefore, prayed that the impugned order be (Downloaded on 15/02/2021 at 10:07:47 PM) (2 of 5) [CW-1032/2021] quashed and his application filed under Section 65 of the Act of 1872 be allowed.
Heard learned counsel for the petitioner and perused the record.
The documents, photo copies of which are sought to be produced by way of secondary evidence are the allotment letter, the office order, the advertisement, letter and other documents. Undisputedly, the allotment order dated 24.07.1982 was issued to the petitioner and must be in its power and possession. There is not whisper of averment in the application filed under Section 65 of the Act of 1872 (Annexure-5) to show the present status of the original allotment letter i.e., as to whether it has been lost/ damaged/destroyed. Similarly, the application does not contain any averment as to existence of originals of other documents. The application also does not reveal as to how the petitioner came into possession of the photo copies of these documents. It is trite law that before the party can be permitted to lead secondary evidence with regard to any document, the requirement laid down under Section 65 of the Act of 1872 has to be satisfied including existence of the original of the document in question.
The Hon'ble Apex Court of India in case of J. Yashoda Vs. K. Shobha Rani, (2007) 5 SCC, 730 has held as under:-
"8. The rule which is the most universal, namely that the best evidence the nature of the case will admit shall be produced, decides this objection that rule only means that, so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it. Section 65 deals with the proof of the contents of the documents tendered in evidence. In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and (Downloaded on 15/02/2021 at 10:07:47 PM) (3 of 5) [CW-1032/2021] execution of the original document. Under Section 64, documents are to be provided by primary evidence. Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said Section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the Section. In Ashok Dulichand v. Madahavlal Dube and Anr. [1975(4) SCC 664], it was inter alia held as follows:
"After hearing the learned counsel for the parties, we are of the opinion that the order of the High Court in this respect calls for no interference. According to clause (a) of Section 65 of Indian Evidence Act, Secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in 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 of any person legally bound to produce it, and when, after the notice mentioned in Section 66 such person does not produce it. Clauses (b) to (g) of Section 65 specify some other contingencies wherein secondary evidence relating to a document may be given, but we are not concerned with those clauses as it is the common case of the parties that the present case is not covered by those clauses. In order to bring his case within the purview of clause (a) of Section 65, the appellant filed applications on July 4, 1973, before respondent No. 1 was examined as a witness, praying that the said respondent be ordered to produce the original manuscript of which, according to the appellant, he had filed Photostat copy. Prayer was also made by the appellant that in case respondent no. 1 denied that the said manuscript had been written by him, the photostat copy might be got examined from a handwriting expert. The appellant also filed affidavit in support of his applications. It was however, nowhere stated in the affidavit that the original document of (Downloaded on 15/02/2021 at 10:07:47 PM) (4 of 5) [CW-1032/2021] which the Photostat copy had been filed by the appellant was in the possession of Respondent No. 1. There was also no other material on the record to indicate the original document was in the possession of respondent no.1. The appellant further failed to explain as to what were the circumstances under which the Photostat copy was prepared and who was in possession of the original document at the time its photograph was taken. Respondent No. 1 in his affidavit denied being in possession appeared to the High Court to be not above suspicion. In view of all the circumstances, the High Court to be not above suspicion. In view of all the circumstances, the High Court came to the conclusion that no foundation had been laid by the appellant for leading secondary evidence in the shape of the Photostat copy. We find no infirmity in the above order of the High Court as might justify interference by this Court.""
The Hon'ble Apex Court of India in case of H. Siddiqui (Dead) By Lrs Vs. A. Ramalingam, (2011) 4 SCC 240 has held as under:-
"12 The provisions of Section 65 of the 1872 Act provide for permitting the parties to adduce secondary evidence. However, such a course is subject to a large number of limitations. In a case where original documents are not produced at any time, nor has any factual foundation been led for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law. The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon."(Downloaded on 15/02/2021 at 10:07:47 PM)
(5 of 5) [CW-1032/2021] Since, there is not a whisper of averment in the entire application under Section 65 of the Act of 1872 to estalish existence of the originals of these documents or to show origin of the photo copies of these documents, nor, the learned counsel for the petitioner could satisfy this Court in this regard, therefore, the learned trial Court has committed no error in dismissing the application filed by the petitioner.
Resultantly, this writ petition is dismissed being devoid of merit.
(MAHENDAR KUMAR GOYAL),J Sudha/90 (Downloaded on 15/02/2021 at 10:07:47 PM) Powered by TCPDF (www.tcpdf.org)