Harbans Kaur and Others vs Beant Kaur and Others

K. Kannan, J.—The revision petition is against an order rejecting a plea for reception of secondary evidence brought at the trial by the defendant on a plea that the original Will is not traceable and he is therefore tendering a registered copy of the Will as secondary evidence. This application for reception of secondary evidence was disallowed by an objection taken by the plaintiff that affidavit of the witnesses had been placed in court as a substitute for the chief examination of witnesses in the manner contemplated under the amended provisions of order 18 CPC and in those affidavits it is stated that they had seen the original in court. An objection therefore was when the witnesses have stated that they had seen the original, the defendant was deliberately burking the document and trying to secure admission of secondary evidence. I called upon the plaintiff''s counsel to show how a reception of secondary evidence could be thrown out even without proof that circumstances exist for such a reception. The counsel appearing for the respondent supports the order passed by the court below by reference to a full Bench ruling of this court in Gulati v. Shiv Charan and others 1980 HLR 273. The reference to Full Bench by a Division Bench had been made in a situation when yet another Division Bench view was stated to be not in accord with the opinion of Privy Council rendered earlier. The full bench was holding that secondary evidence cannot be permitted unless the case was pleaded that the original was lost and the loss was accounted to the satisfaction of the court. I have no difficulty in accepting an argument and indeed I will be bound by the judgment of the Full Bench that the secondary evidence cannot be relied on by a court unless the loss of original is accounted for. How the same should be done is the issue for consideration in this case now. In my view, filing an application for reception of secondary evidence is not contemplated as a necessary procedure, even as per the views expressed by the full bench. In deed, there is not even a requirement in law to file an application for reception of secondary evidence. It may be practice in some courts and may be adopted by some counsel. It is neither mandated under CPC nor is it a requirement under the Evidence Act. All that the Evidence Act requires for production of secondary evidence is that one or other circumstance set out u/s 65 of the Evidence Act must be satisfied. u/s 65, secondary evidence can be produced where the original has been destroyed or lost or the party offering evidence on his contest cannot, due to any other reason not arising from his own default, produce it in reasonable time. It can be noticed that a loss of document is not the only consideration. It can be even a situation where the person offering evidence cannot produce it in reasonable time. Inability to produce could include a circumstance as pleaded that the document is not traceable.

If a person tenders a registration copy document and states that it is not traceable, the court is bound to receive the document and subject the statement of the person tendering the document to be tested in the cross examination. The circumstance for production of secondary evidence is essentially a matter of evidence and brought through inference from such evidence. It cannot be prejudged on an assumption that the person producing the secondary evidence ought to be taken as stating an untruth or he is deliberately burking the same. Even a reference that in the proof affidavit filed it is stated that the original has been filed in court ought to be taken as a mistake of fact, since the original is indeed not in court. A statement in the proof affidavit that the original is filed in Court can be explained to be wrong and secondary evidence can be tendered on a later statement that the original is not traceable. The previous statement by the same witness testified by affirmation of the existence of Will or that he has seen the Will would be a matter for being confronted in cross examination and the defendant can take advantage of the affidavits which were filed in Court. If there is an affidavit of the party, such an affidavit is a matter for either explanation or for contradiction at the time when the previous statement is confronted to him. Counsel appearing for the respondent wants the Court to make an inference that the defendant is producing copy of the original Will and the same is forged. All these will be matters of judicial inference at an appropriate time when the judgment is delivered after arguments.

We have come by some practices which are out of tune with times. There had been a long time practice of objecting to reception of documents and forcing an adjudication by the court before a document is assailed and exhibited. In the judgment in Bipin Shantilal Panchal Vs. State of Gujarat and Another, the Supreme Court said that the practice of objecting to the exhibition of documents and inviting the court to give finding on relevance of document has the inevitable consequences of holding up trial and the new practice that was to be supplanted shall be to receive the documents subject to proof, if the court cannot take an immediate decision on the relevance or admissibility of documents. The only exception could be when the document is insufficiently stamped or a document not stamped since the bar to reception of the document is absolute u/s 35 of the Indian Stamp Act. It stands on a different footing, for such reception will itself take away the right of a person to object to the admissibility of the document at a later stage by virtue of Section 36 of the Stamp Act. This is the only exception recognised by the Supreme Court in the aforesaid judgment Further, a document does not become evidence per se, by the only fact that it is assigned an exhibit number. Marking a document or assigning an exhibit number does not dispense with a requirement of legal proof of such document. A registration copy of the document tendered in court would have to be supported by i) any of the circumstances for reception of secondary evidence u/s 65 of the Evidence Act ii) the document is spoken and proved in the manner that Section 63 of the Indian Succession Act and Section 68 of the Evidence Act require. These are again essentially matters of evidence which will come through only when the witnesses are put through cross examination at the trial.

In Simarpal Singh Vs. Hakam Singh this court had an occasion to refer to the procedure for reception of secondary evidence that nothing more needs to be done than stating one of the grounds as required u/s 65 of the Evidence Act for justification of reception of secondary evidence. Whether the grounds do really exist or not could be tested in cross examination only. The same position has also been affirmed in S.P. Arora v. Satbir Singh 2010 (5) RCR 350, where this Court has explained that the attempt to de-exhibit a document that is received by the court simply does not arise. The reception of the document which is a registration copy of the Will sought to be produced at the instance of the petitioner ought to have been received in evidence. The witnesses must have been given an opportunity to speak about the same. The court is bound to exhibit the document as brought on record, subject to objection by the plaintiff and will render an adjudication at the time of delivering the judgment about the proof or otherwise of the document in the light of evidence and not throw out the document at the threshold. If the contentions as pleaded by the counsel of the respondent, were to be accepted, we wilt have a strange situation of a contention regarding the genuineness of such a document will be settled by the court even without the document being in Court and without allowing for any witness to utter a word about it. Such a procedure is absurd and defeats the cause of justice. The impugned order is set aside and the civil revision is allowed.