Arun Kumar @APPELLANT@Hash Special Judge, NDPS Cases

The petitioners have preferred this writ petition under Article 226 & 227 of the Constitution of India, claiming the following reliefs:

“(i) By an appropriate writ, order or direction, the order dated 25.01.2018 (Annexure-8) may kindly be quashed and set aside;

(ii) By an appropriate writ, order or direction, the application filed by the respondents/plaintiffs under Section 65 of the Indian Evidence Act, 1972 may

kindly be dismissed in the Civil Original Suit No.68/2016 (Kuldeep Kour and Anr. Vs. Jai Ram & Anr) pending in the court of Special Judge, NDPS

Cases, District Sriganganagar;

(iii) Any other relief which this Hon’ble Court deemsappropriate and genuine may kindly be granted in favour of the petitioners;

(iv) Cost of the writ petition may kindly be awarded to thepetitioners;â€​

Precisely the facts of the case are that the respondent No.2 and 3 filed a suit for specific performance for an agreement dated 25.03.2006

regarding the agricultural land measuring 11 bighas and 17 biswas in Murabba No.54 in Village 2 C Chhoti, Tehsil and District Sriganganagar. The

father of the petitioners was said to be the sole owner of the disputed land. The petitioners have preferred this petition challenging the impugned order

whereby, the application filed under Order 11 Rule 12 & 14 CPC for production of agreement dated 09.10.2006 from the possession of the petitioners

which was dismissed by the learned court below but the respondents were permitted to file a photostat copy of the sale agreement dated 09.10.2006

under Section 65 of the Indian Evidence Act, 1972 (hereinafter referred to as the Act of 1972).

Learned counsel for the petitioner has shown from the record that a notice was given by the respondents on 10.10.2006 and therefore, as per the

petitioner, if there was such an agreement then agreement dated 09.10.2006 should have found mention in the notice dated 10.10.2006.

It is contended by learned counsel for the petitioners that the rejection of the application under Order 11 Rule 12 & 14 CPC does not entitle the

respondent to have the agreement on record in the shape of photostat copy under Section 65 of the Act of 1972.

It is also contended by learned counsel for the petitioners that once the existence of the agreement was not proved therefore, it was not open for

the respondents to produce the document under Section 65 of the Act of 1972.

Learned counsel for the petitioners has relied upon the judgment in the matter of Hukmi Chand Mosun Vs. Kushal Chand Duggad reported in AIR

2017 Rajasthan 215. The relevant portion of the judgment reads as under:

“8. It is trite that under the Evidence Act, 1872 facts have to be proved by primary evidence and secondary evidence is only an exception to the

rule. For the exception aforesaid to apply, foundational facts have to be supplied to the trial court's satisfaction and preconditions for leading secondary

evidence fulfilled. The Apex Court in the case of M. Chandra v. M. Thangamuthu and Ors. (2010) 9 SCC 712 : (AIR 2011 SC 146) has held that

secondary evidence cannot be allowed only for reason of permission merely being sought. Permission can only be granted on the Court being satisfied

that absence of primary evidence is not attributable to the applicant himself. In the case of H. Siddiqui (dead) by L.Rs. v. A. Ramalingam (2011) 4

SCC 240 : (AIR 2011 SC 1492) the Apex Court reiterated that were original documents are not produced without as 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. In para 12 it

was held as under:

Provisions of Section 65 of the Act, 1872 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, any factual foundation has 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.

In Smt. J. Yashoda v. Smt. K. Shobha Rani (2007) 5 SCC 730 : (AIR 2007 SC 1721) the Apex Court held that to be entitled to lead secondary

evidence it is necessary for the party seeking such indulgence to prove existence and execution of the original document. A three Judge Bench of the

Apex Court in the case of Ashok Dulichand v. Madahavlal Dube & Anr. (1975) 4 SCC 664 : (AIR 1975 SC 1748) held in para 7:

There was also no other material on the record to indicate that 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 photostat was taken. Respondent No. 1 in his affidavit denied being in possession of or having anything to do with such a

document. The photostat copy appeared to the High Court to be not above suspicion. In view of all the circumstance, 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.

In the case of U. Sree v. U. Srinivas (2013) 2 SCC114 : (AIR 2013 SC 415) the Apex Court has held that refusal of the existence of the

document by the opposite party in a trial in an application under Orders 11, 12 and 14, CPC moved by the other is by itself not a reason for permitting

the leading of secondary evidence without anything more.

Nawab Singh, AIR 1999 SC 1668 (supra) states that suspicion as to the secondary evidence should not lead to dismissal of an application under

Section 65 of the Evidence Act. It does not however say that secondary evidence should be recklessly permitted without strict scrutiny by the Court.

The scrutiny has to be strict as for any exception to apply. Secondary evidence being admitted is an exception to the rule of proving facts by primary

evidence. Besides Nawab Singh (supra) was a judgment rendered by two Judges as against Ashok Dulichand (AIR 1975 SC 1748) (supra) rendered

by a three Judge Bench much prior where it was held that overall suspicious circumstances qua a document sought to be admitted in evidence as

secondary evidence can lead to dismissal of an application under Section 65 of the Evidence Act. Reliance by Mr. Raj at Ranjan on the judgment in

the case of Mst. Bibi Aisha and Ors. (AIR 1969 SC 253) (supra) is misplaced as the said case related to a matter under Section 65(1) of the Evidence

Act and not Section 65(a) thereof as in the instant case. Further in Mst. Bibi Aisha and Ors. (supra) the document in issue therein was admitted to

exist. Not so here.â€​

Learned counsel for the respondent has vehemently defended his right under Section 65 of the Act of 1972 where even the lost document as per

him could entitle the party to produce the photostat copy of the document in question.

Treading his arguments ahead, learned counsel for the respondent referred to a judgment of this Court in case of Keshu Ram and another Vs.

Sonaki Bai W/o Raju Ram and another., reported in AIR 2018 Rajasthan 10., whereby this Court has taken the following views:

“29. Adverting to the requirement of filing affidavit, in absence of any statutory requirement, this Court is of the firm view that an application

cannot be thrown, merely because it is not supported by an affidavit. The requirement of affidavit, even if presumed to be necessary, deserves to be

done away with, as the plaintiffs had come out with the categorical case and assertion that original had been lost, even at the stage of filing the plaint,

which plaint was supported by an affidavit. Even otherwise, the requisite affidavit can be permitted to be filed subsequently, as held by Hon’ble

Supreme Court in case of State of Raj. Vs. Khemraj, reported in (2000) 9 SCC 241.

The third contention of the Respondent that thepetitioners have not stated that “the copy being placed as secondary evidence is a copy

generated by mechanical process, which ensures the accuracyâ€​ is equally fallacious. The term photocopy itself is a synonym of process of preparing

copy by zerox machines, which produces a photographic reproduction of the document, by a process involving the action of light. As such the

assertion of the plaintiffs that it is a photo copy, is capable of conveying the meaning that the copy generated is by a mechanical process, which

ensures accuracy. It is to be noted that in the year 1872 when Section 63 of the Evidence Act was introduced, the zerox machines were not even

invented (the Photo Stat machine was invented in 1938), hence sub-section (2) of Section 63 of the Evidence Act, provides inherent checks to ensure

accuracy. As such the recital as proposed by the Respondents would be an empty formality, which even if made, cannot do away with the

requirement of proving its existence veracity.

In view of what has been discussed, the writpetition is allowed. The order impugned dated 26.08.2016 is quashed and set at naught. The

application filed by the petitioners’ under Section 65 of the Evidence Act is allowed and the photocopy of the agreement dated 26.12.1991 is

ordered to be taken on record.

It is clarified that merely because the documenthas been let in the file of the trial Court, the same per se would not be a proof of the existence of

the document. As held by this Court that after taking the document on record, the party relying upon it, will have to prove its existence and execution

so also its contents and conditions. Needless to observe that the respondent/defendant shall be permitted to raise all just objections regarding

admissibility of the document in the teeth of the provisions of Registration Act and Stamp Act. The objection as and when raised, shall be decided by

the learned Trial Court, in accordance with law. Any observation made by this Court consciously or otherwise touching upon admissibility of the

document shall not come in the way of learned Trial Court to decide the same.â€​

After hearing learned counsel for the parties and perusing the record of the case as well as the precedent law cited by both the parties, this Court is

of the view that Section 65 of the Act of 1972 has a very wide scope and once the suit is for specific performance and the photostat copy of the

agreement which was sought to be produced by the respondents through the petitioner, has been refused then it was ofcourse correct on the part of

the learned court below to permit the respondents to take the photostat copy of the document on record. The taking of the document on record does

not necessarily mean that the document has become final as the right of the petitioners to raise all the objections regarding the admissibility of the

document shall always remain open and could be decided by the learned court below itself. The refuting of the documents was the domain of the

petitioners but accepting the documents under Section 65 of the Act of 1972 was a very wide scope looking into the language of Section 65 of the Act

of 1972 and hence, could not have been denied by the learned court below.

In the above backdrop, the impugned order does not call for any interference, hence, the present writ petition is dismissed.