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8) Per contra, the learned counsel for the respondent submits that the photocopy of the draft 'chitha' was a manufactured document and that the certificate issued by the Circle Officer did not disclosed that the document was lost/destroyed, for which the foundation for introducing secondary evidence was not present. Arguing in support of the impugned order, it is submitted that as both the petitions were filed under Section 65(c) of the Evidence Act this was a clear case where the principle of res-judicata and/or constructive res- judicata would apply and the learned counsel for the respondent prays for dismissal of the present application. In support of his argument, the learned counsel for the respondent places reliance on the case of Marwari Kumhar Vs. Bhagwanpuri Guru Ganeshpuri, AIR 2000 SC 2629: (2000) 6 SCC 735.

Therefore, although the order dated 05.11.2014, passed by the learned trial court is not under challenge, but this Court finds that the learned trial court had committed illegality in holding that the petitioners failed to show that they had exhausted all resource and means in search of the original document, as if the petitioners were the custodians of the public records of the 'chitha' and that the petitioners did not enough to trance it out. The learned trial court appears to have totally failed to appreciate that the petitioners had no power or authority to conduct any search operation in the office of the Circle Officer or the office of Deputy Commissioner concerned to search out record of 'chitha' from their office and therefore, to hold that the petitioner had not exhausted all resource and means to search for the original documents appears to be something which impossible for the petitioners to do. Rather, the trial court did have the power to call for the original record of 'chitha' from the concerned authority after it had disbelieved the certificate issued by the Circle Office by holding that the "non availability" of the record of 'chitha' did not mean that the record was lost or destroyed. In the opinion of this Court, the jurisdictional error on part of the learned trial court is apparent on the face of the record because the learned trial court on the basis of conjunctures and surmises, interpreted the contents of the Certificate issued by responsible officer i.e. the Circle Office who is the custodian of such record to arrive at a finding that the certificate did not mean that the document was lost or destroyed. This could not have been held without recording any evidence in this regard.

8. This court in Laiqan Begam Vs. Abdul Hamid, (1979) RLR 545, held that "not traceable" or "lost", both enable the invocation of secondary evidence u/s 65 of the Act. I am also of the opinion that for invocation of Section 65, it is not necessary to take a stand that the document is lost, so as never to be found. It is sufficient to prove that the document is not available at the relevant time and its whereabouts are unknown then."

16) In the present case in hand, by refusing to examine the Circle Officer or the authorized person, the learned trial court had failed to address the question of fact as to whether the original record of draft 'chitha' was lost or destroyed, which goes to the root of the matter because the learned trial court had disbelieved the certificate issued by the Circle Officer that the documents being "not available"

did not mean that the document was lost or destroyed. Therefore, the refusal to examine the Circle Officer is found to be vitiated by jurisdictional error. A litigating party cannot have any control over the words used by a public authority like a Circle Officer while issuing a certificate for not issuing certified copy and a party would be helpless if the authority used the words "non- availability of record" instead of using "record lost/ destroyed". The procedural law is to be treated as a handmaid of justice and not an instrument of oppression. In the present case in hand, the learned trial court, taking a hyper-technical view, has caused failure of justice by not examining the Circle Officer or his authorised person and thus, refusing to find out the truth.