Jagmohan Lal and Another vs Palak Chand and Others

S.C. Mital, J.—The revision petition is directed against the order dated 27th February, 1981 of learned Sub-Judge 1st Class, Faridkot allowing secondary evidence with respect to mortgage deed, sought to be proved by the Plaintiffs. Learned counsel for the Defendant-Petitioners has brought to my notice that formerly an application filed by the Plaintiffs for producing secondary evidence was disallowed by the Sub-Judge on 5th February, 1981. A perusal of that order indicates that the learned Sub-Judge was not quite satisfied that the requirement of Section 65(c) of the Indian Evidence Act had been complied with. All the same, the learned Sub-Judge allowed the Plaintiffs to make another application. Thereafter, on 27th February, 1981, this Plaintiffs examined P.W. 9 Balwinder Singh, Recovery Clerk, D.R.A.''s Branch of the office of the Collector Bhatinda. He deposed that he received the summons on the preceding date and searched for the summoned document but he could not find it. Apart from the fact that the time at the disposal of Balwinder Singh for the search of the document was not enough, his cross-examination reveals that the Receipt Register of his office, which would have indicated the receipt of the document, was also not traceable. Upon these facts, learned Counsel for the Petitioners contended that the little effort made by Balwinder Singh could hardly be said to be enough to prove the loss of the document so as to attract the provision of Section 65(c) of the Indian Evidence Act. All the same, learned Sub-Judge after examination Balwinder Singh passed the impugned order allowing the adducing of secondary evidence. The order has been rightly assailed on the strength of Biswanath Agarwalla Vs. Sm. Dhapu Debi Jajodia and Others, , which lays down that to record a finding that the document is lost, to enable a party to produce a certified copy thereof, it must be established that a thorough search had been made in places where it was likely to be found and of persons likely to have possession of the same. Then in Gurnam Kaur v. Meja Singh 1966 68 PLR 614, R.S. Sarkaria J. (as he then was) held that before a party is entitled to give secondary, evidence of contents of the original, the non-production of the original must be satisfactorily accounted for. Lastly, in Roman Catholic Mission v. The State of Madras and Anr. AIR 1956 SC 1457, it was laid down that a foundation has to be laid for establishing the right to give secondary evidence.

In view of the authorities cited above, the impugned order cannot be sustained. It is accordingly set aside with the remarks that the Plaintiffs may be given another opportunity to satisfy the requirements of Section 65 and 65(c) of the Indian Evidence Act. This revision petition stands disposed of.