Gopal Krishan Jiwan Kumar and Another vs Puran Singh and Others

Swatanter Kumar, J.—Mr. Puran Singh, Kartar Singh and Sampuran Singh filed three different suits against M/s. Gopal Krishan Jiwan Kumar and others for rendition of accounts with effect from 1-4-1985 with interest.

The suits were contested by M/s. Gopal Krishan Jiwan Kumar and other petitioners herein. Issues were framed and the case was fixed for evidence of the plaintiffs. At that stage, the respondents/plaintiffs filed an application for permission to lead secondary evidence in respect of affidavit/receipt alleging that the affidavit/ receipt was executed by defendant No. 2 Gopal Krishan and was in his possession. The application was contested by the other side which took up the plea that if he affidavit/receipt was executed by the defendant No. 2 as averred, it could not have been in their possession and ought to be in possession of the plaintiffs.

As already noticed, there are three suits between the parties where the defendants are common and the learned trial Court vide its order dated 18-8-1997 allowed the application in all the three cases by a similar order. Consequently, the order dated 18th August, 1997 has given rise to the present three revision petitions being filed on behalf of the defendants in the suit. In the case of Sampuran Singh, the order dated 18-8-1997 has been impugned by the petitioner in Civil Revision No. 4389 of 1997, in the case of Puran Singh in Civil Revision No. 4388 of 1997 and in the case of Kartar Singh in Civil Revision No. 4390 of 1997. Thus, it would be convenient as well as expedient to dispose of all the three revision petitions by this common order.

During the course of arguments on these applications, the learned trial Court had perused the copy of the document in regard to which permission to leave secondary evidence was sought and it held as under:--

"I have considered the submissions made on behalf of both the parties and have perused the impugned document. Perusal of impugned document shows that it was never executed by defendant No. 2 as mentioned in the application. During course of arguments, it was mentioned by the plaintiffs-applicants that the impugned document was executed by defendant No. 2. The impugned affidavit was executed by the plaintiffs-applicants in favour of defendant No. 2 after receiving 1/2 of disputed amount. In these circumstances defendant No. 2 is supposed to have the original document."

With the above observations, the learned trial Court allowed the application for permission to lead secondary evidence. One fact which needs to be noticed at the very outset is that the plaintiffs in the suit had served a notice for production of this document and an application for direction to the defendants to produce the document in Court was also filed. Once a notice for production of original document, the copy of which is in possession of the applicant, has been served upon the other party, even application for production of such document is filed and in face of the stand the document is not in his possession, the situation obviously would be different than a mere permission to lead secondary evidence simpliciter. As is clear from the observations of the learned trial Court that the document had been executed by the plaintiffs. The document indicating the receipt of payment and dealing between the parties had been spelt out in this document. The copy of the document was produced before this Court during the course of arguments. It appears that the accounts till December, 1983 were settled while the present suit always for rendition of accounts with effect from 1st April, 1985 till the date of institution of the suit and also the suit is based upon part payment allegedly received by the plaintiff by cheque on 5-6-1996.

It is true that permission to lead secondary evidence would normally be granted upon proof of execution of documents and loss thereof. The copy of the document has already been placed on record which indicates that the payment was made by cheque issued by the defendants. Thus, the existence of such document at least prima facie is established. The question of loss is not of much significance in the facts and circumstances of the present case because notice for production of the document as well as an application for production of the document had been served upon the defendants. From the copies of the records which have been furnished by the learned counsel for the parties, it appears that in reply to the application for production of document dated 12-11-1996 the following legal objection was taken on behalf of the respondents.

"That the documents sought to be produced are in the power and possession of Income Tax Department, Bathinda and the same can be got produced from them and some of the documents are in power and possession of defendant No. 2 and he is the person who can produce it."

Even from the above objection, it is clear that execution of the document is not in question. As far as the loss is concerned, the document has not been lost and it is stated to be in possession of the Income Tax Department. It is not urged on behalf of the either party to these proceedings that official from the Income Tax Department has been examined and any statement with regard to the loss or non-availability of the original document has come on record.

The parameters of Section 65 of the Indian Evidence Act can come to the rescue of a party who has served the notice on the other side to produce the document, the original of which is in possession of the parties to whom notice is served. Consequently, the secondary evidence can be permitted to be led when the original is shown or appears to be in possession and power of the person against whom such a document is sought to be proved. The ambiguity on the part of the petitioner in failing to give a definite reply to either of the applications must lead to passing of an appropriate order by the Court concerned. The fact which emerged from the record is that such document was executed by the respondents herein the original of which was in possession of the petitioners which either continues to be in their possession or/and they have refused to produce it or the document is in possession of the Income Tax Department. In either case, the right of the plaintiffs to lead evidence based on this document and prove the same in accordance with law cannot be taken away. May be it would have been more appropriate for the respondents to call for a witness from the Income Tax Department to establish on record that the original document has been lost/misplaced or was not available. But there is reasonable possibility of the document being in possession of the petitioners which they have failed to produce or to give a definite reply in relation to the particular document i.e. affidavit/receipt.

The learned trial Court while allowing the application has specifically observed that the secondary evidence is permitted subject to the proof of loss. Permission to lead secondary evidence no way can be taken to be a waiver as to the admissibility of the document and mode of its proof in accordance with law. The rule of evidence in regard to the admissibility and proof of document would still apply in consonance with the provisions of Chapter 5 of the Indian Evidence Act.

Learned counsel appearing for the parties have not been able to bring on record as to what steps were finally taken on the application for production of document except to the extent that defendants in the suit had taken a plea that the document is not in their possession.

The present case can be looked into from another angle i.e. the production of this document and permission to the respondents to lead secondary evidence would cause no prejudice to the rights and contentions of the petitioners. It is for the reason that the document clearly refers to the payment by cheque, made by the petitioner to the respondents. The best evidence which is very foundation of this document is also in possession of the petitioner. Thus, even the interest of justice would demand, that the petitioners if trying to withhold the best evidence which is in his possession and is based on the document issued by them at least no adverse inference can be drawn against the other parties who seeks to produce the copy of the document.

1 do not find any jurisdictional or other error in the impugned order dated 18-8-1997 which would call for any interference by this Court in its revisional jurisdiction. However, the impugned order is clarified to the extent that the permission to lead secondary evidence would stand subject to the condition that leave be granted to the respondents herein to summon the witness from the Income Tax Department.

These revisions are accordingly disposed of.