Gujarat High Court
Chandreshbhai Dhanrajbhai Jethani vs Mihirbhai Bhikhabhai Virani on 21 March, 2024
NEUTRAL CITATION
C/SCA/8810/2021 JUDGMENT DATED: 21/03/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8810 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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CHANDRESHBHAI DHANRAJBHAI JETHANI
Versus
MIHIRBHAI BHIKHABHAI VIRANI & ORS.
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Appearance:
MR. MIHIR JOSHI WITH MR SAURABH G AMIN(2168)
for the Appellant(s) No. 1
MR. VIMAL PATEL FOR VMP LEGAL(7210)
for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 21/03/2024
ORAL JUDGMENT
1. The present petition is filed by the petitioner - original plaintiff by challenging the impugned order dated Page 1 of 44 Downloaded on : Thu Mar 21 20:59:59 IST 2024 NEUTRAL CITATION C/SCA/8810/2021 JUDGMENT DATED: 21/03/2024 undefined 12.03.2021 passed below Exh.76 application in Special Civil Suit No.14 of 2009 by the learned Principal Senior Civil Judge, Gondal, whereby the trial court has rejected to exhibit some of the applications, which was sought to be exhibited.
2. Brief facts of the case are as such that the petitioner had preferred a Special Civil Suit No.14/2009 against the respondents before the Learned Principle Senior Civil Judge, Gondal praying for specific performance of agreement to sell dated 11/10/2005 for the immovable properties mentioned in the plaint (Exh-1) for a total consideration of Rs.25,00,000/-. The petitioner paid an earnest money of Rs.2,00,000/- to the Respondent no. 1 through a cheque drawn on R.C.C. Bank bearing no. 86325 dated 05/10/2005. The petitioner filed an affidavit in examination-in-chief dated 19/07/2019 below exh-75 stating in detail factual narration and referring to the documentary evidences produced. It is stated on oath that original agreement to sell dated 11/10/2005 is not produced as such agreement to sell along with other documents were lost between Yagnik Road to Jubilee Chowk and the said incident of original documents Page 2 of 44 Downloaded on : Thu Mar 21 20:59:59 IST 2024 NEUTRAL CITATION C/SCA/8810/2021 JUDGMENT DATED: 21/03/2024 undefined getting lost were advertised by the petitioner in daily newspaper 'Akila' on 20/02/2009. The petitioner preferred an application dated 19/07/2019 below exh-76 to exhibit certain documents as mentioned in the said application, which are only marked and not exhibited. In the said application, it is again factually narrated as to why certain documents are produced by way of secondary evidence against primary evidence. However, the trail court by order dated 12/03/2021 below exh-76 refused to exhibit documents marked as 74/1, 74/2, 74/3, 74/13, 74/33, 74/34, 74/38, 74/39 and allowed other documents being marked as 74/4 to 74/12 and 74/14 to 74/32 along with 74/35 to 74/37 to be exhibited subject to proving of such documents. Hence, the present petition is preferred.
3. Heard Mr. Mihir Joshi, the learned senior counsel assisted by Mr. Saurabh G. Amin, the learned counsel for the petitioner and Mr. Vimal Patel, the learned counsel appearing for VMP Legal for the respondents. 4.1 Mr. Mihir Joshi, the learned senior counsel for the petitioner has submitted that the impugned order dated 12.03.2021 is contrary to law, equity and evidence on Page 3 of 44 Downloaded on : Thu Mar 21 20:59:59 IST 2024 NEUTRAL CITATION C/SCA/8810/2021 JUDGMENT DATED: 21/03/2024 undefined record and the trial court has committed gross and palpable error of law. Furthermore, he has submitted that the trial court has wrongly interpreted S. 65 of the Indian Evidence Act and 07 R. 14 of the Code of Civil Procedure. The trail court ought to have exhibited the document marked with 74/1 and admitted the said evidence as secondary evidence by virtue of Section 65(c). It is stated in the application that the originals of the same was lost. The applicant has produced vide mark 74/1 a photocopy of the original, which has been compared and notarized and it has been recorded in his book at Sr.No. 2075 pg 68. Thus the said document is a photcopy prepared by know mechanical means which itself insures accuracy of the copy. Furthermore, he has submitted that the trial court has failed to give any reason for not exhibiting the other documents and thus the order is not a reasoned order and amounts to breach of principles of natural justice. Furthermore, he has submitted that trial court ought to have admitted the documents marked with 74/2, 74/3 as 'Exhibit' as the said documents are original and hence, amounts to primary evidence by virtue of Section 62 of the Indian Evidence Act. Document at mark 74/2 is the original Page 4 of 44 Downloaded on : Thu Mar 21 20:59:59 IST 2024 NEUTRAL CITATION C/SCA/8810/2021 JUDGMENT DATED: 21/03/2024 undefined newspaper advertisement published in Akila newspaper on 20.02.2009 wherein it is declared that original Saudachithi/agreement to sale is lost and document at Exh. 74/3 is the original bill for publishing the said advertisement issued by M/s. Simple Ad. & Commu. Furthermore, he has submitted that the trial court ought to have admitted and exhibited the documents marked 74/13 as the said document is a 'proposed public notice' for the property in question, it is prepared on the basis of instruction given by the petitioner and respondents and such document bears signature of the 3 respondents. The petitioner has produced a photocopy of the original which has been compared and certified as "True Copy" of the original by Notary Public Shri H. Н. Patel on. Patel on 20.04.2007 and it has been recorded in his book at Sr. no. 2076 pg. 68. Thus the said document is a photocopy prepared by known mechanical means which itself insures accuracy of the copy. The trial court ought to have exhibited and admitted the documents marked with 74/33 & 74/34 as the document at Mark 74/33 a office copy of query list prepared by petitioner's Advocate Devmurari and was given to the respondents to submit the documents mentioned therein for examination of the Page 5 of 44 Downloaded on : Thu Mar 21 20:59:59 IST 2024 NEUTRAL CITATION C/SCA/8810/2021 JUDGMENT DATED: 21/03/2024 undefined title and document marked with 74/34 are the photocopy of title document given by the respondents to the petitioner. Hence, the trial court has erred by not exhibiting document produced at Mark 74/38 and the trail court has erred in considering it as a photocopy whereas he said document is an original bank account statement issued by The Rajkot Commercial Co-op bank and bears the seal of the bank and is signed by its Manager and has erred by not exhibiting document produced at mark 74/39 without assigning any reason. The said document is an account statement of the petitioner, which shows monthly summary of amount in his bank statement. Furthermore, he has submitted that the trial court has committed grave error of law by misinterpreting Order 7 Rule 14. Furthermore, he has submitted that the petitioner has attached all the necessary and relevant documents on which he relies upon to sue the respondents by a list of documents such as certified copy of agreement to sell dated 11/10/2005, original copy of 'Akila' newspaper dated 20/02/2009, original bill receipt dated 21/03/2009 of advertisement stating original documents lost in 'Akila' newspaper, original/certified copy of proposed public notice, office Page 6 of 44 Downloaded on : Thu Mar 21 20:59:59 IST 2024 NEUTRAL CITATION C/SCA/8810/2021 JUDGMENT DATED: 21/03/2024 undefined copy of query list of Advocate Devmurari and certified copy of Utrotar Title deeds along with other documentary evidence with the plaint. Hence, the petitioner clearly complied with the ingredients of Order 7 Rule 14. Furthermore, he has submitted that the trial court ought to have considered recent decision of Hon'ble Supreme Court which has reiterated time and again that secondary evidence can be produced provided that parties establishes factual foundation for non-production of original documents. Hence, he has submitted that the impugned order dated 12.03.2021 is illegal, contrary to law and equity, amounts to wrong exercise of discretion, perverse, palpable error resulting into immense and irreparable hardship to the petitioner and hence, it needs to be quashed and set aside.
4.2 In support of his submissions, he has relied upon he judgment of the Hon'ble Apex Court in the case of (i) Dhanpat vs. Sheo Ram (deceased) through Legal Representatives and Others reported in (2020) 16 SCC 209, more particularly, paragraphs 22 to 25 are relevant,
(ii) Jagmail Singh vs Karamjit Singh reported in (2020) 5 SCC 178, more particularly, paragraphs 9, 11, 13 to Page 7 of 44 Downloaded on : Thu Mar 21 20:59:59 IST 2024 NEUTRAL CITATION C/SCA/8810/2021 JUDGMENT DATED: 21/03/2024 undefined 16 are relevant, and (iii) Bipin Shantilal Panchal vs State of Gujarat & Anr. reported in (2001) 3 SCC 1, more particularly, paragraphs 13 to 16 are relevant. 5.1 Mr. Vimal Patel, the learned counsel appearing for VMP Legal for the respondents has strongly opposed the averments made and the contentions raised in toto except those, which are specifically admitted by the respondent No.1 to be true herein. Furthermore, he has submitted that the petitioner has not come with clean hands and suppressed material facts and at the same time has pleaded the list of documents at Pg. No. 18 of the petition as if that the said list of document was produced along with the plaint at the time of institution of Special Civil Suit No.14 of 2009. I from the record of the suit state that Special Civil Suit No.14 of 2009 was presented on 24.02.2009 along with list of documents dated 24/02/2009 at Exh. 4 consisting of 21 documents. The petitioner has not produced the said list of documents with the petition. Furthermore, he has submitted that at the time of the institution of the suit, the petitioner had not produced the original of alleged Sodachithi dated 11.10.2005 as well as original of alleged Page 8 of 44 Downloaded on : Thu Mar 21 20:59:59 IST 2024 NEUTRAL CITATION C/SCA/8810/2021 JUDGMENT DATED: 21/03/2024 undefined proposed public notice. From the said list, it can be seen that only the photocopy of such documents were filed along with the suit. The plaintiff in the suit has not disclosed the fact that such documents are not in his power or possession nor it is disclosed that such documents are lost. Furthermore, he has submitted that the suit was opposed by respondent no.1 by filing written statement dated 13/03/2009 at Exh. 7 by pointing out that no such alleged Sodachithi was ever entered into or executed or was in existence and denied the alleged signature in the alleged Soda Chithi and alleged proposed paper notice. Further, the alleged documents were never in existence and, therefore, there was no question of such documents being true copy by a notary on 20/04/2007. Furthermore, he has submitted that in view of the above, the respondent no.1 gave an application dated 16/03/2009 at Exh. 8 under Order 7, Rule 14 calling upon the petitioner to produce the original of above both the documents and to disclose if such document is not in power and possession of the petitioner. The said application was opposed by the petitioner by filing reply dated 08/04/2009 at Exh. 19 contending that it is not necessary to produce original of Page 9 of 44 Downloaded on : Thu Mar 21 20:59:59 IST 2024 NEUTRAL CITATION C/SCA/8810/2021 JUDGMENT DATED: 21/03/2024 undefined documents as photocopy of the same are produced by the petitioner. Furthermore, he has submitted that the respondent no. 1 submitted written arguments dated 22/08/2012 at Exh. 28 which does not give any reason for non production of the originals of these documents. Furthermore, he has submitted that the petitioner also filed written arguments dated 05/09/2012 at Exh. 36 pointing out that the petitioner has produced the photocopy of the document and that the petitioner has declared that the original is in possession of the petitioner and requested to reject the application and the trial court by an order dated 28.02.2014 rejected the application at Exh.8 on the ground that these documents can be produced at the time of evidence since the copy of the document is produced. Therefore, he has submitted that at no point of time, the petitioner has laid foundation to the fact that the original of the above documents was in his power and possession or that the said documents were lost. Furthermore, he has submitted that the petitioner gave list of documents dated 19/07/2019 at Exh. 74 producing 39 documents with a note that these documents are produced vide list of documents at Exh. 4 and the petitioner had produced Page 10 of 44 Downloaded on : Thu Mar 21 20:59:59 IST 2024 NEUTRAL CITATION C/SCA/8810/2021 JUDGMENT DATED: 21/03/2024 undefined photocopy of 21 documents vide list of documents at Exh. 4. Even in the said list, the petitioner has not produced original of the alleged Sauda Chithi dated 11/10/2005 and original of the alleged proposed public notice which were produced again as alleged true copy vide mark 74/1 and 74/13. Furthermore, he has submitted that the petitioner in the examination in chief dated 19/07/2019 for the first time stated that the folder consisting of the alleged Sauda Chitthi at Mark 74/1 was lost between Yagnik Road and Jubilee Chowk for which alleged public notice dated 20/02/2009 was given. However no such facts were disclosed either in the plaint filed by the petitioner nor in response to the reply dated 08/04/2009 at Exh. 19 filed by the petitioner opposing the application filed by the respondent no.1 seeking production of original of these documents. 5.2 Furthermore, he has submitted that in fact, in the written arguments dated 05/09/2012 at Exh. 36, it is stated by the petitioner that the petitioner has already declared that the possession of original of the documents is with the petitioner. Therefore the original of the document was in the possession of the petitioner Page 11 of 44 Downloaded on : Thu Mar 21 20:59:59 IST 2024 NEUTRAL CITATION C/SCA/8810/2021 JUDGMENT DATED: 21/03/2024 undefined otherwise the same would not have been stated in the written arguments dated 05/09/2012. Hence it cannot be believed as stated in the affidavit of examination in chief that document was lost on 20/02/2009. Furthermore, he has submitted that the suit was presented on 24/02/2009 by the petitioner wherein also the petitioner has not stated that the document was lost on 20/02/2009 and that the alleged public notice dated 20/02/2009 was given in newspaper "AKILA". Furthermore, he has submitted that the petitioner is deliberately withholding and not producing the original of the document as the petitioner very well knows that the respondents have never signed any such document and if the original is produced then the same would be sent to the hand writing expert for verifying the genuineness of signature, which the petitioner would fail to prove. It is under these circumstances that the petitioner has come out with concocted story that the original is lost and in absence thereof the petitioner may be permitted to produce the true copy by way of secondary evidence. Furthermore, he has submitted that the onus is on the petitioner to prove that the alleged Sauda Chithi dated 11/10/2005 was in existence and that it bears the genuine signature Page 12 of 44 Downloaded on : Thu Mar 21 20:59:59 IST 2024 NEUTRAL CITATION C/SCA/8810/2021 JUDGMENT DATED: 21/03/2024 undefined of the respondents upon the said alleged Sauda Chithi as well as the alleged proposed public notice. Even if one compares the photocopy of both documents then the signature in both documents are exactly verbatim without any difference in space which even if a person who signs two separate original signature would not be in a position to sign with exact verbatim. Therefore, the petitioner has failed to produce the superior evidence which is in the possession of the petitioner as it was never the case of petitioner that the alleged document was lost. Hence, he has submitted that the condition laid down to lead secondary evidence under Section 65 of Evidence Act is not fulfilled.
5.3 Furthermore, he has submitted that the respondents in the written statement has denied the signature, the contents of the alleged document i.e. Sauda Chithi and the proposed public notice and also the existence of such documents and on the contrary called upon the petitioner to produce the original of the same. However, the petitioner failed to produce and also failed to disclose that such documents are lost and on the contrary asserted that the petitioner has declared that the Page 13 of 44 Downloaded on : Thu Mar 21 20:59:59 IST 2024 NEUTRAL CITATION C/SCA/8810/2021 JUDGMENT DATED: 21/03/2024 undefined original documents are with the petitioner. Furthermore, he has submitted that in view of the above, the petitioner is not entitled to lead secondary evidence to prove the alleged above two documents produced at mark 74/1 and 74/13.,Furthermore, he has submitted that the documents at Mark 74/2 and 74/3 i.e. alleged public notice dated 20/02/2009 and alleged bill dated 21/03/2009 are not pleaded in the plaint and neither it was disclosed by the petitioner at any point of time that such public notice was ever given. Further, the public notice does not give any details of the person, who has given such notice nor does it give any particular which would connect in respect of the suit land. under the circumstances such documents which were never produced along with list at Exh.4 at the time of institution of suit and the fact that there is no pleading in the plaint in relation to this document, it is submitted that such document cannot be permitted to be exhibited. Furthermore, he has submitted that the documents at mark 74/33 is the alleged query list which is unsigned and does not bear signature of any person including the alleged person viz. Advocate Udayan R. Devmurari. Therefore, again it is an office copy as stated in the list Page 14 of 44 Downloaded on : Thu Mar 21 20:59:59 IST 2024 NEUTRAL CITATION C/SCA/8810/2021 JUDGMENT DATED: 21/03/2024 undefined of documents, which if it is correct than it would always be with the advocate. The petitioner is not the author of the document. Under the circumstances, such document cannot be admitted in evidence nor such document can be exhibited. Furthermore, he has submitted that the document at mark 74/34 are the alleged title deeds, which are produced by way of photocopy which were given to the petitioner. The photocopy of the document in absence of the original cannot be permitted to be exhibited. Further the petitioner has not produced such documents in the present petition. Even the said documents were never produced along with list at Exh. 4 at the time of institution of suit. In any case, the photocopy of the documents in absence of the original cannot be permitted to be exhibited and read in evidence.
5.4 Furthermore, he has submitted that the document at mark 74/38 & 74/39 are the alleged passbook of the Rajkot Cooperative Bank and alleged ledger account of the petitioner for the period 01/04/2005 to 31/03/2009. Furthermore, he has submitted that the suit was presented on 24/02/2009 and these documents are in Page 15 of 44 Downloaded on : Thu Mar 21 20:59:59 IST 2024 NEUTRAL CITATION C/SCA/8810/2021 JUDGMENT DATED: 21/03/2024 undefined power and possession of the petitioner, which at the time of suit, could have been produced. However after a period of 10 years from the institution of the suit, the petitioner for the first time has produced the said documents and requested to exhibit the same. Furthermore, he has submitted that the books of accounts are prepared by the accountant and the ledger account are self attested and are not kept in regular course of business. Further there is no averment or evidence that such documents are kept in regular course of business. Hence, he has submitted that these documents cannot be permitted to be exhibited. Furthermore, he has submitted that the contents of a document by way of secondary evidence cannot be admitted without non-production of the original being first accounted. In the present case, the petitioner has not disclosed at any point of time as to who was in possession of the original of document and has failed to show original of such document at Mark 74/1 & 74/13 being in existence. Hence, he has submitted that in view of what is stated hereinabove and considering the conduct of the petitioner in not coming with clean hands regarding the power and possession of the original of Page 16 of 44 Downloaded on : Thu Mar 21 20:59:59 IST 2024 NEUTRAL CITATION C/SCA/8810/2021 JUDGMENT DATED: 21/03/2024 undefined documents, the prayer as prayed in the petition to exhibit the documents at Mark 74/1, 74/2, 74/3, 74/13, 74/33, 74/38 and 74/39 deserves to be rejected. He has submitted that considering the facts and circumstances of the case the trial court has rightly passed an order dated 12/03/2021 not permitting to exhibit the document at Mark 74/1, 74/2, 74/3, 74/13, 74/33, 74/38 and 74/39. 5.5 In support of his submissions, he has relied upon the judgment of the Hon'ble Apex Court in the cases of
(i) The Roman Catholic Mission vs State Of Madras And Another reported in AIR 1966 SC 1457, more particularly, paragraph 8, (ii) U. Sree vs U. Srinivas reported in (2013) 2 SCC 114, more particularly, paragraphs 16 & 17 are relevant, and (iii) Rakesh Mohindra vs. Anita Beri and Others reported in (2016) 16 SCC 483, more particularly, paragraph 20. 6.1 I have heard learned counsel for the parties. I have considered the rival submissions made at the bar bar by the respective parties. It appears that the trial court's order allows the exhibition of certain documents while rejecting the application to exhibit the remaining Page 17 of 44 Downloaded on : Thu Mar 21 20:59:59 IST 2024 NEUTRAL CITATION C/SCA/8810/2021 JUDGMENT DATED: 21/03/2024 undefined documents. The rejection of the application for exhibiting these documents is challenged before this Court. It also transpires that the learned trial court has has partly allowed the application file below Exh.76 in Special Civil Suit No.14 of 2009.
6.2.1 It also transpires that the trial court has dealt with the provisions of Order 7 Rule 14 of the Civil Procedure Code, as under:
"14. Production of document on which plaintiff sues or relies.--(1) Where a plaintiff sues upon a ument or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint. (2) Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is.
(3) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.
(4) Nothing in this rule shall apply to document produced Page 18 of 44 Downloaded on : Thu Mar 21 20:59:59 IST 2024 NEUTRAL CITATION C/SCA/8810/2021 JUDGMENT DATED: 21/03/2024 undefined for the cross-examination of the plaintiffs witnesses, or handed over to a witness merely to refresh his memory."
6.2.2 It also transpires that the trial court has referred to Section 64 of the Indian Evidence Act, 1872, as under:
"64. Proof of documents by primary evidence. Documents must be proved by primary evidence except in the cases hereinafter mentioned."
6.3 The trial court has permitted the exhibition of documents marked as 74/4 to 74/12 and 74/14 to 74/32, along with 74/35 to 74/37. However, it has refused to exhibit other documents marked as 74/1, 74/2, 74/3, 74/13, 74/33, 74/34, 74/38, and 74/39. This refusal was based on the respondents' submissions at the bar that these documents are suspicious and is required to be proved in accordance with law. The respondents' advocate argued that all these documents are dubious, and conduct of the petitioner also speaks about itself. 6.4.1 The Sodachitti and other documents, which could have been produced at the relevant point of time, which not produced; for that the learned advocate for the Page 19 of 44 Downloaded on : Thu Mar 21 20:59:59 IST 2024 NEUTRAL CITATION C/SCA/8810/2021 JUDGMENT DATED: 21/03/2024 undefined respondents has relied on the judgment of the Hon'ble Apex Court in the case of The Roman Catholic Mission (supra), more particularly, paragraph 8 is relevant as under:
"8. As there is no document recording the grant of inam and its conditions, one has to turn to a number of documents from which the High Court and the court below have drawn opposite conclusions regarding what was included in the inam. There is, of course, no dispute that the inam must have comprised the melwaram at least. That it must have done in any event. Thus the sole question is whether it comprised the kudiwaram also. In reaching the conclusion that both warams were included, the District Judge took into consideration certified copies of certain leases from the record of an old case O. S. No. 124 of 1944 of the Court of Subordinate Judge, Madurai. These documents are Exts. B-4, 5, 6 and A- 68, 69 and 77. Ex. B-4 is a karalnama (agreement) executed for the fasli years 1348 and 1349 by which the lessees undertook to hand over 1/3 share of the produce as melwaram and to retain 2/3 share as kudiwaram from the lands leased out of Keelapappapathu. Ex. B-5 is another lease for cul- tivating, the whole of Keelapappapathu nanja (wet) lands. Ex. B-6 is a muchilika in respect of nanja lands in Keelapappapathu by which lessee undertook to pay half produce as melwaram and to retain the other half as kudiwaram. These documents undoubtedly would have thrown light upon the Page 20 of 44 Downloaded on : Thu Mar 21 20:59:59 IST 2024 NEUTRAL CITATION C/SCA/8810/2021 JUDGMENT DATED: 21/03/2024 undefined matter but they were not admissible because they were only copies. The originals were not produced at any time nor was any foundation laid for the establishment of the right to give secondary evidence. The High Court rejected them and it was plainly right in so deciding. If we leave these documents out of consideration, the other documents do not show that the inam comprised the kudiwaram also. Ex. A-3 is an extract from the village account of Managiri village, Mandakulam Taluk relating to inams. It is for the years 1802-1803. The lands are sufficiently identified with the suit lands by the area. The lands were described as Stelather inam Poruppa manyam, conducted for Meenakshi Sunderashwaral temple. The poruppu being a low or quit rent according to the 5th Reprot p.765 we get an indication as to what the inam comprised. The account shows that from the total assessment of 96 Pons O fanoms and 15 thuddus, the poruppu was only 19 Pons. 2 fanoms and 3 thuddus. Again in Ex. A-5, which is an extract of the Inam Account of Manigiri village of 1217 fasli i.e., five years later, the heading was Inam Enquiry Mauje (village) Manigiri". Now the, word Mauje is used in respect of villages in which there are, cultivators owning cultivable lands. This has been so held for a long time [See Venkata Sastrulu v. Sitharamadu ILR 38 Mad 981 (AIR 1915 Mad
727), per Sadasiva lyer, J. and Sethayya v. Somayajulu, ILR 52 Mad 453 at p. 463: (AIR 1929 PC 115 at p. 118).
In the remarks column the poruppu amount payable is stated and it almost corresponds to the poruppu earlier mentioned, and there is a further mention of the service of the temple. The pattas exhibits A-6 to A-8 of the years Page 21 of 44 Downloaded on : Thu Mar 21 20:59:59 IST 2024 NEUTRAL CITATION C/SCA/8810/2021 JUDGMENT DATED: 21/03/2024 undefined 1856, 1857 and 1860 also speak of sournadayam manibam poruppu which is revenue payable in money at a concession The inamdars did not themselves claim in the Inam enquiry any-thing more than the melwaram rights and in Exts. A- 10 and A-1 1, which are the Inam statements (1862) and the Inam Fair Register dated September 25, 1863. the Stalathar Poruppu Manibam is again mentioned and the Inam were registered in the names of Bhattars as the Sthaniks of the temple."
6.4.2 It is also relevant to refer the judgment of the Hon'ble Apex Court relied by the learned counsel for the respondents in the case of U. Sree (supra), more particularly, paragraphs 16 & 17 are relevant, as under:
"16. In M. Chandra v. M. Thangamuthu and Other[12], It has been held as follows:-
"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 Page 22 of 44 Downloaded on : Thu Mar 21 20:59:59 IST 2024 NEUTRAL CITATION C/SCA/8810/2021 JUDGMENT DATED: 21/03/2024 undefined 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."
17. Recently, in H. Siddiqui (Dead) by Lrs. v. A. Ramalingam, while dealing with Section 65 of the Evidence Act, this Court opined though the said provision permits the parties to adduce secondary evidence, yet such a course is subject to a large number of limitations.
"12. In a case where the original documents are not produced at any time, nor has any factual foundation been laid 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."
It has been further held that mere admission of a document in evidence does not amount to its proof. Therefore, it is the obligation of the Court to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. Page 23 of 44 Downloaded on : Thu Mar 21 20:59:59 IST 2024
NEUTRAL CITATION C/SCA/8810/2021 JUDGMENT DATED: 21/03/2024 undefined 6.4.3 It is also relevant to refer the judgment of the Hon'ble Apex Court relied by the learned counsel for the respondents in the case of Rakesh Mohindra (supra), more particularly, paragraph 20, as under:
"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."
6.4.4 The above judgments are relied by the learned counsel for the respondents in support his case as that there is serious doubt about the documents, which are sought to be exhibited and the trial court has rightly refused to do so. From the foundation laid in the suit also, such documents are not required to be exhibited. Page 24 of 44 Downloaded on : Thu Mar 21 20:59:59 IST 2024
NEUTRAL CITATION C/SCA/8810/2021 JUDGMENT DATED: 21/03/2024 undefined 6.5.1 It is also relevant to refer the judgment of the Hon'ble Apex Court relied by the learned counsel for the petitioner in the case of Dhanpat (supra), more particularly, paragraphs 22 to 25 are relevant, as under:
"22. There is no requirement that an application is required to be filed in terms of Section 65(c) of the Evidence Act before the secondary evidence is led. A party to the lis may choose to file an application which is required to be considered by the trial court but if any party to the suit has laid foundation of leading of secondary evidence, either in the plaint or in evidence, the secondary evidence cannot be ousted for consideration only because an application for permission to lead secondary evidence was not filed.
23. Now, coming to the question as to whether the defendants have proved the due execution of the Will, reference will be made to a judgment reported as H. Venkatachala Iyengar v. B.N. Thimmajamma & Ors.9. This Court while considering Section 63 of the Act and Section 68 of the Evidence Act laid down the test as to whether the testator signed the Will and whether he understood the nature and effect of the dispositions in the Will. The Court held as under:
"18. ...Thus the question as to whether the will set up by the propounder is proved to be the last will of Page 25 of 44 Downloaded on : Thu Mar 21 20:59:59 IST 2024 NEUTRAL CITATION C/SCA/8810/2021 JUDGMENT DATED: 21/03/2024 undefined the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters."
24. This Court in a judgment reported as Seth Beni Chand (since dead) now by LRs. v. Smt. Kamla Kunwar & Ors.10 held that onus probandi lies in every case upon the party propounding a Will, and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator. The Court held as under:
"9. The question which now arises for consideration, on which the Letters Patent Court differed from the learned Single Judge of the High Court, is whether the execution of the will by Jaggo Bai is proved satisfactorily. It is well- settled that the onus probandi lies in every case upon the party Page 26 of 44 Downloaded on : Thu Mar 21 20:59:59 IST 2024 NEUTRAL CITATION C/SCA/8810/2021 JUDGMENT DATED: 21/03/2024 undefined propounding a will, and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator. By "free and capable testator" is generally meant that the testator at the time when he made the will had a sound and disposing state of mind and memory. Ordinarily, the burden of proving the due execution of the will is discharged if the propounder leads evidence to show that the will bears the signature or mark of the testator and that the will is duly attested. For proving attestation, the best evidence would naturally be of an attesting witness and indeed the will cannot be used as evidence unless at least one attesting witness, depending on availability, has been called for proving its execution as required by Section 68 of the Evidence Act...."
25. In view of the aforesaid judgments, at least one of the attesting witnesses is required to be examined to prove his attestation and the attestation by another witness and the testator. In the present case, DW-3 Maha Singh deposed that Chandu Ram had executed his Will in favour of his four grandsons and he and Azad Singh signed as witnesses. He deposed that the testator also signed it in Tehsil office. He and Azad Singh were also witnesses before the Sub- Registrar. In the cross-examination, he stated that he had come to Tehsil office in connection with other documents for registration. He deposed that Ex.D-4-the Will, was typed in his presence. He denied the question that no Will was executed in his presence. There was no cross-examination Page 27 of 44 Downloaded on : Thu Mar 21 20:59:59 IST 2024 NEUTRAL CITATION C/SCA/8810/2021 JUDGMENT DATED: 21/03/2024 undefined about his not being present before the Sub-Registrar. Once the Will has been proved then the contents of such document are part of evidence. Thus, the requirement of Section 63 of the Act and Section 68 of the Evidence Act stands satisfied. The witness is not supposed to repeat in a parrot like manner the language of Section 68 of the Evidence Act. It is a question of fact in each case as to whether the witness was present at the time of execution of the Will and whether the testator and the attesting witnesses have signed in his presence. The statement of the attesting witness proves the due execution of the Will apart from the evidence of the scribe and the official from the Sub-Registrar's office."
6.5.2 It is also relevant to refer the judgment of the Hon'ble Apex Court relied by the learned counsel for the petitioner in the case of Jagmail Singh (supra), more particularly, paragraphs 9, 11, 13 to 16 are relevant, as under:
9. The High Court vide impugned order dated 09.01.2017 observed that -
"As per facts & circumstances of the instant case, original Will dated 24.01.1989 was given to the revenue official(s) for incorporating and sanctioning of mutation on the basis thereof, but to the utter surprise, though, both the revenue officials, namely, Page 28 of 44 Downloaded on : Thu Mar 21 20:59:59 IST 2024 NEUTRAL CITATION C/SCA/8810/2021 JUDGMENT DATED: 21/03/2024 undefined Pyare Lal and Rakesh Kumar, Patwaries, were served under Section 66 of the Act to produce original Will dated 24.01.1989 but they failed to produce it. Moreover, they had nowhere stated about the existence of the original Will. So, the pre-requisite condition i.e. existence of the Will, remained un- established on record. Thus, while observing that the learned Trial Court had declined the permission to prove Will dated 24.01.1989 by way of secondary evidence, the order dated 30.09.2015 suffers from no infirmity or illegality, rather the same is absolutely in accordance with the evidence available on file as well as settled proposition of law."
The High Court did not find any merit in the Revision Petition and dismissed the same while upholding the decision of the lower Court on the ground that the pre- requisite condition for admission of secondary evidence, i.e. existence of Will remained unestablished.
11. A perusal of Section 65 makes it clear that secondary evidence may be given with regard to existence, condition or the contents of a document when the original is shown or appears to be in possession or power against whom the document is sought to be produced, 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 notice mentioned in Section 66 such person does not produce it. It is a settled position of law that for secondary evidence to be admitted foundational evidence has to be Page 29 of 44 Downloaded on : Thu Mar 21 20:59:59 IST 2024 NEUTRAL CITATION C/SCA/8810/2021 JUDGMENT DATED: 21/03/2024 undefined given being the reasons as to why the original Evidence has not been furnished.
13. In the matter of Rakesh Mohindra vs. Anita Beri and Ors. this Court has observed 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 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."
14. It is trite that under the Evidence Act, 1872 facts have to be established by primary evidence and secondary evidence is only an exception to the rule for which foundational facts have to be established to account for the existence of the primary evidence. In the case of H. Siddiqui (dead) by LRs Vs. A. Ramalingam3, this Court reiterated that where original documents are not produced without a plausible reason and factual foundation for laying secondary evidence not established it is not permissible for the court to allow a party to adduce secondary evidence. Page 30 of 44 Downloaded on : Thu Mar 21 20:59:59 IST 2024
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15. In the case at hand, it is imperative to appreciate the evidence of the witnesses as it is only after scrutinizing the same opinion can be found as to the existence, loss or destruction of the original Will. While both the revenue officials failed to produces the original Will, upon perusal of the cross-examination it is clear that neither of the officials has unequivocally denied the existence of the Will. PW- 3 Rakesh Kumar stated during his cross-examination that there was another patwari in that area and he was unaware if such Will was presented before the other patwari. He went on to state that this matter was 25 years old and he was no longer posted in that area and, therefore, could not trace the Will. Moreover, PW- 4 went on to admit that, "there was registered Will which was entered. There was a Katchi (unregistered) Will of Babu Singh was handed over to Rakesh Kumar Patwari for entering the mutation...". Furthermore, the prima facie evidence of existence of the Will is established from the examination of PW-1, Darshan Singh, who is the scribe of the Will in question and deposed as under :-
"I have seen the Will dated 24.01.1989 which bears my signature as scribe and as well as witness."
16. In view of the aforesaid factual situation prevailing in the case at hand, it is clear that the factual foundation to establish the right to give secondary evidence was laid down by the appellants and thus the High Court ought to have given them an opportunity to lead secondary evidence. The High Court committed grave error of law without Page 31 of 44 Downloaded on : Thu Mar 21 20:59:59 IST 2024 NEUTRAL CITATION C/SCA/8810/2021 JUDGMENT DATED: 21/03/2024 undefined properly evaluating the evidence and holding that the pre- requisite condition i.e., existence of Will remained unestablished on record and thereby denied an opportunity to the appellants to produce secondary evidence." 6.5.3 It is also relevant to refer the judgment of the Hon'ble Apex Court relied by the learned counsel for the petitioner in the case of Bipin Shantilal Panchal (supra), more particularly, paragraphs 13 to 16 are relevant, as under:
"13. It is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection. But the fall out of the above practice is this: Suppose the trial court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the appellate or revisional court, when the same question is re-canvassed, could take a different view on the admissibility of that material in such cases the appellate court would be deprived of the benefit of that evidence, because that was not put on record by the trial court. In such a situation the higher court may have to send the case back to the trial court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realised through Page 32 of 44 Downloaded on : Thu Mar 21 20:59:59 IST 2024 NEUTRAL CITATION C/SCA/8810/2021 JUDGMENT DATED: 21/03/2024 undefined the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or re-moulded to give way for better substitutes which would help acceleration of trial proceedings.
14. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the judge or magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.)
15. The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence taking stage, would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior court, when the same objection is re-canvassed and reconsidered in appeal or revision against the final judgment of the trial Page 33 of 44 Downloaded on : Thu Mar 21 20:59:59 IST 2024 NEUTRAL CITATION C/SCA/8810/2021 JUDGMENT DATED: 21/03/2024 undefined court, can determine the correctness of the view taken by the trial court regarding that objection, without bothering to remit the case to the trial court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses.
16. We, therefore, make the above as a procedure to be followed by the trial courts whenever an objection is raised regarding the admissibility of any material or any item of oral evidence."
6.6 Considering the submissions made at the bar, now it is required to refer provisions of Sections 3, 5 and 65 of the Indian Evidence Act, as under:
"Section 3 in The Indian Evidence Act, 1872:-
3. Interpretation clause.
In this Act the following words and expressions are used in the following senses, unless a contrary intention appears from the context :
"Court". - "Court" includes all [Judges] [Cf. the Code of Civil Procedure, 1908 (5 of 1908), Section 2, the Indian Penal Code (45 of 1860), Section 19; and, for definition of [District Judge], the General Clauses Act, 1897 (10 of 1897), Section 3(17).] and [Magistrates] [Cf. the General Clauses Act, 1897 (10 of 1897), Section 3(32) and the Code of Criminal Procedure, 1973 (2 of 1974).], and all persons, Page 34 of 44 Downloaded on : Thu Mar 21 20:59:59 IST 2024 NEUTRAL CITATION C/SCA/8810/2021 JUDGMENT DATED: 21/03/2024 undefined except arbitrators, legally authorised to take evidence. "Fact". - "Fact" means and includes -
(1) any thing, state of things, or relation of things, capable of being perceived by the senses;
(2) any mental condition of which any person is conscious. Illustrations
(a) That there are certain objects arranged in a certain order in a certain place, is a fact.
(b) That a man heard or saw something, is a fact.
(c) That a man said certain words, is a fact.
(d) That a man holds a certain opinion, has a certain intention, acts in good faith or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.
(e) That a man has a certain reputation, is a fact.
"Relevant". - One fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts.
"Facts in issue". - The expression "facts in issue" means and includes - any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature or extent of any right, liability or disability, asserted or denied in any suit or proceeding, necessarily follows. Explanation. - Whenever, under the provisions of the law for the time being in force relating to [Civil Procedure] [Now see the Code of Civil Procedure, 1908 (5 of 1908); as to the settlement of issue, see Sch.I, Order XIV.], any Court records an issue of fact, the fact to be asserted or denied in the answer to such issue, is a fact in issue.Page 35 of 44 Downloaded on : Thu Mar 21 20:59:59 IST 2024
NEUTRAL CITATION C/SCA/8810/2021 JUDGMENT DATED: 21/03/2024 undefined Illustrations A is accused of the murder of B. At his trial the following facts may be in issue - that A caused B's death;
that A intended to cause B's death;
that A had received grave and sudden provocation from B; that A, at the time of doing the act which caused B's death, was, by reason of unsoundness of mind, incapable of knowing its nature.
"Document" - ["Document"] [Cf. the Indian Penal Code (45 of 1860), Section 29 and the General Clauses Act, 1897 (10 of 1897), Section 3(18).] means any matter expressed or described upon any substance by means of letters, figures, or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.
Illustrations A [writing] [Cf. definition of [writing] in the General Clauses Act, 1897 (10 of 1897), Section 3(65).] is a document;
[Words printed, lithographed or photographed are documents; A map or plan is a document;
An inscription on a metal plate or stone is a document; A caricature is a document]. [Cf. definition of [writing] in the General Clauses Act, 1897 (10 of 1897), Section 3(65).] "Evidence" - "Evidence" means and includes -
(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; (2) all documents including electronic records produced for Page 36 of 44 Downloaded on : Thu Mar 21 20:59:59 IST 2024 NEUTRAL CITATION C/SCA/8810/2021 JUDGMENT DATED: 21/03/2024 undefined the inspection of the Court] [Substituted by Act 21 of 2000, Section 92 and Sch.II, for the all documents produced for the inspection of the Court.]; such document are called documentary evidence.
"Proved". - A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. "Disproved" - A fact is said to be disproved when, after considering the matter before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.
"Not proved". - A fact is said not to be proved when it is neither proved nor disproved.
"India" - "India" means the territory of India excluding the State of Jammu and Kashmir.] [Substituted by Act 3 of 1951, Section 3 and Sch., for the definitions of [State] and [States] which were inserted by A.O. 1950.
Section 5 in The Indian Evidence Act, 1872:-
5. Evidence may be given of facts in issue and relevant facts.
Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.
Explanation. - This section shall not enable any person to Page 37 of 44 Downloaded on : Thu Mar 21 20:59:59 IST 2024 NEUTRAL CITATION C/SCA/8810/2021 JUDGMENT DATED: 21/03/2024 undefined give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force relating to [Civil Procedure] [Now see the Code of Civil Procedure, 1908 (5 of 1908).].
Illustrations
(a) A is tried for the murder of B by beating him with a club with the intention of causing his death. At A's trial the following facts are in issue :
A's beating B with the club;
A's causing B's death by such beating;
A's intention to cause B's death.
(b) A suitor does not bring with him, and have in readiness for production at the first hearing of the case, a bond, on which he relies. This section does not enable him to produce the bond or prove its contents at a subsequent stage of the proceedings, otherwise than in accordance with the conditions prescribed by the [Code of Civil Procedure.] [Now see the Code of Civil Procedure, 1908 (5 of 1908).] Section 65 in The Indian Evidence Act, 1872:-
65. Cases in which secondary evidence relating to document 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 Page 38 of 44 Downloaded on : Thu Mar 21 20:59:59 IST 2024 NEUTRAL CITATION C/SCA/8810/2021 JUDGMENT DATED: 21/03/2024 undefined 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] [[[Cf. the Bankers'Books Evidence Act, 1891 (18 of 1891), Section 4.]], 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 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 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. 65A. Special provisions as to evidence relating to electronic Page 39 of 44 Downloaded on : Thu Mar 21 20:59:59 IST 2024 NEUTRAL CITATION C/SCA/8810/2021 JUDGMENT DATED: 21/03/2024 undefined record.
[Inserted by Act 21 of 2000, Section 92 and Sch.II (w.e.f. 17.10.2000).] The contents of electronic records may be proved in accordance with the provisions of section 65B. 65B. Admissibility of electronic records. (1) Notwithstanding anything contained in this Act, any records. information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible. (2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:-
(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;Page 40 of 44 Downloaded on : Thu Mar 21 20:59:59 IST 2024
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(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities. (3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause
(a) of sub-section (2) was regularly performed by computers, whether-
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers. all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly. (4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,- Page 41 of 44 Downloaded on : Thu Mar 21 20:59:59 IST 2024
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(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
(5) For the purposes of this section,-
(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(c) a computer output shall be taken to have been produced Page 42 of 44 Downloaded on : Thu Mar 21 20:59:59 IST 2024 NEUTRAL CITATION C/SCA/8810/2021 JUDGMENT DATED: 21/03/2024 undefined by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.
Explanation. - For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process." 6.7 Considering the submissions made during the proceedings, I am inclined to allow the present petition in line with the precedent set in the case of Bipin Shantilal Panchal (supra). Accordingly, the trial court is directed to give tentative exhibit the remaining documents, which are already on record as secondary evidence. Subsequently, after affording the parties proper opportunity to the parties, the court shall proceed with the proceedings in accordance with the law, and also also by considering the admissibility of such documents finally by deciding the suit based on the merits of each party's case, taking into account the pleadings, available documentary evidence, and oral testimony available on record.
7. With the above observations, the present petition is allowed to the extent.
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8. The impugned order dated 12.03.2021 passed below Exh.76 application in Special Civil Suit No.14 of 2009 by the learned Principal Senior Civil Judge, Gondal is hereby quashed and set aside to the extent that the such documents, which are not permitted to be exhibited by the trial court and now same will be given the tentative exhibits and thereafter to proceed with matter in accordance with law and decide the suit proceedings on its merits.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 44 of 44 Downloaded on : Thu Mar 21 20:59:59 IST 2024