Dwarika Prasad Bajpai vs Kedar Prasad Bajpai and Another

Subhro Kamal Mukherjee, J.—This an application under Article 227 of the Constitution of India (''the said application'' in short) against order No. 116 dated July 30, 2002 passed by the learned Judge, Thirteen Bench, City Civil Court at Calcutta in Title Suit No. 973 of 1990.

The plaintiff/petitioner instituted the said suit against the opposite parties, inter alia, for declaration that the conveyance of the suit property by the defendant No. 2 to the defendant No. 1 was invalid, void and/or voidable and not binding upon the plaintiff. It was contended to the plaint that the opposite party No. 2 entered into an agreement for sale of the disputed property with the plaintiff and the defendant No. 1 on March 9, 1978, inter alia, agreeing to convey the suit property in favour of the plaintiff and the defendant No. 1 jointly. The defendant No. 2 accepted Rs. 5,001/- towards the earnest money at the time of execution of the said agreement. The plaintiff and the defendant No. 1 instituted Title Suit No. 504 of 1985 in the City Civil Court at Calcutta, inter alia, for specific performance of the said contract against the defendant No. 2. The defendant No. 1 was allegedly looking after the said case, but the said suit was dismissed for default without the knowledge and consent of the plaintiff. Subsequently, the defendant No. 2 conveyed the suit property in favour of the defendant No. 1 by virtue of a registered conveyance dated March, 30 1990.

The defendants are contesting the said suit.

On September, 5, 2001 the learned Advocate for the plaintiff issued a notice to produce document u/s 66 of the Evidence Act, 1872 (''the said Act'' in short) requiring the defendant No. 1 to produce at the trial of the said suit, on September, 7, 2001, the original agreement dated March 9, 1978 executed by and between the defendant No. 2 and the plaintiff and the defendant No. 1. Although the said notice was served on the learned Advocate for the defendant No. 1, admittedly, the said original agreement dated March 9, 1978 was not produced at the trial by the defendant No. 1.

While deposing as plaintiffs witness No. 1, the plaintiff produced a photocopy of the said original agreement dated March 9, 1978 and, thereafter, filed on March 11, 2002 an application u/s 65 of the said Act for acceptance of the photocopy of the said agreement dated March 9, 1978 in evidence. The defendant No. 1 contested the said application by filing a written objection. It is contended that the said document was not in possession of the said defendant inasmuch as the original document was lost/or misplaced on the way and as such the defendant No. 1 was prevented by sufficient cause to produce the original document. It was, further, contended that the defendant No. 1 lodged complaint in the police station concerned regarding the loss of original document. It was alleged that the plaintiff was trying to produce a photocopy of the said document as secondary evidence, which was not permissible in the eye of law.

The learned Trial Judge by the order impugned rejected the said application of the plaintiff holding, inter alia, that photocopy of the said agreement could not be taken into as a secondary evidence.

Being aggrieved the plaintiff has come up with this appeal.

Mr. Harish Tandon, learned Advocate, appearing in support of the said application, cited the decisions in the cases of Nawab Singh Vs. Inderjit Kaur, , Mst. Bibi Aisha and Others Vs. The Bihar Subai Sunni Majlis Avaqaf and Others, and Muthu Venkatarama Reddiar Vs. Vardaraja Kounder, and submitted that the learned Trial Judge ought to have, in the facts and circumstances of the case, admitted the said photocopy of the agreement for sale dated March 9, 1978 as the defendant failed to produce the document when called upon to do so by the plaintiff.

Mr. Shyamal Chakraborty, learned Advocate, appearing for the opposite party No. 1, opposed the said application and contended that the photocopy of the said agreement could not be accepted as a secondary evidence and he cited the decisions in the cases of Ashok Dulichand Vs. Madahavlal Dube and Another, , Kabita Bose v. Timir Baran Haldar and Ors., reported in 96 CWN 529 and State of West Bengal and Ors. v. Arun Kumar Basu and Anr., reported in (2)1993 CLT 56.

Section 65 of the said Act runs as under :

"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 documents 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 an 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 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 document is admissible.

In case (c) 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".

Wilson, J. in the matter of a collision between the "Ava" and the "Brenhilda" reported in ILR(5) Calcutta 568 observed: "By Section 65, in cases under Clauses (a) and (c), any secondary evidence is admissible; in case under Clauses (e) and (f), only a certified copy. The present case falls under (a) or (c), and also under (f). In such a case which rule applies? I think the words, "In cases (a), (c), and (d) any secondary evidence is admissible," are too clear and too strong to be controlled by anything that follows, and that therefore in this case any secondary evidence might be received".

The Supreme Court of India in Mst. Bibi Aisha (supra) quoted with approval the said observations of Wilson, J.

Supreme Court of India in the case of Nawab Singh (supra) held that in the said case the Trial Court was not justified in rejecting the prayer of a tenant seeking leave of the Court to produce a copy of the rent note on the ground that the said note sought to be produced was of doubtful veracity. It was, further, held that the rejection of the prayer of the tenant without affording the tenant an opportunity of adducing secondary evidence was unjustified.

My reading of the provisions of Section 65 of the said Act is that in order to enable the plaintiff to tender a copy of a document it is enough for the plaintiff to prove that the original is not in his possession and in so far as he is concerned it is lost. Although the learned Trial Judge rejected the said application of the plaintiff, but he came to the findings of fact that it was admitted before him that there was existence of a sale agreement dated March 9, 1978 and the original document was lying with the defendant No. 1 immediately after execution. A notice u/s 66 of the said Act was served on the defendant No. 1, but the defendant No. 1 did not produce the original document on the plea the same was lost and/or misplaced and the defendant lodged complaint before the police station. The defendant, however, failed to file any scrap of paper to prove his allegation that he at all reported the loss of the original document in the police station. The language of Section 65 of the said Act is wide enough to enable the plaintiff to use copy of the original document when the original was not produced by the defendant No. 1 in. spite of notice u/s 66 of the said Act.

The decision cited by Mr. Chakraborty in Ashok Dulichand (supra) is distinguishable. In the said case a photostat copy of a hand written leaflet was sought to be produced in evidence and it was not explained when and in what circumstances it was made and in whose possession the original was lying. The decisions in the case of Kabita Bose (supra) and the State of West Bengal and Ors. v. Arun Kumar Basu and Anr. (supra) are, also, distinguishable inasmuch as in those cases there was no evidence of any person, who has seen the original document from which the photostat copy was taken.

In the case in hand, existence of the original sale agreement dated March 9, 1978 is not in dispute. It is, also, an admitted position that after execution of the document the original document was lying with the defendant No. 1, who is the brother of the plaintiff. Admittedly, a notice u/s 66 of the said Act was served on the defendant No. 1, through his learned advocate, but the defendant failed to produce the said original document. Moreover, although the defendant took the stand that the original was lost and/or misplaced on the way and he lodged a complaint in the local police station, but the defendant No. 1 miserably failed to prove that the original document was lost and he at all lodged a complaint with the police.

I am of the opinion that it is a fit case in which the learned Trial Judge ought to have permitted the plaintiff to tender the photostat copy of the said agreement for sale dated March 9, 1978, The said application is, therefore, allowed. Order impugned is, accordingly, set aside and the application filed by the plaintiff u/s 65 of the said Act is allowed and the plaintiff is granted liberty to tender the photostat copy of the said agreement for sale dated March 9, 1978 in the Trial Court.

I, however, make it clear that I have not gone into the relevancy or probative value of the said document at this stage.

I make no order as to costs.

Xerox plain copies of this order duly countersigned by the Assistant Registrar (Court) of this Court are to be given to the learned Advocates appearing for the parties on their usual undertaking.

Subhro Kamal Mukherjee, J.