Kanhaiya Lal Gupta and Others vs Ashok Kumar and Others

Sujoy Paul, J.—This petition filed under Article 227 of the Constitution challenges the order dated 27.01.2010 passed by Fourth Additional District Judge in Civil Suit No. 5A/2010, whereby the application preferred by the respondent/plaintiff under sections 65 and 66 of Indian Evidence Act is allowed. Brief facts necessary for the decision of this matter are as under:-

The respondent No. 1/plaintiff filed a suit for declaration of his right and possession. It is stated in the suit that the land in question was purchased by plaintiff''s father by registered sale deed dated 28.12.1973 and a will was executed by plaintiff''s father in favour of plaintiff''s mother on 21.03.1972. Plaintiff''s mother Smt. Mayadevi died on 24.03.1995, who had executed a will in favour of plaintiff on 09.03.1994. On the strength of that will, it is the case of plaintiff that he is the owner of the suit property.

The petitioners/defendants filed the written statement and denied the averments of plaint. The defendants also filed an application under order 11 rule 12 CPC which was allowed by the Court below on 04.08.2008. The plaintiff was directed to file affidavit and in obedience of that order, the affidavit was filed on 15.09.2008 by the plaintiff stating that all original documents are in possession of the plaintiff and photocopy of the same has been filed along with the plaint. Thereafter, the trial Court framed issues and examination-in-chief of plaintiff''s witness was made. Thereafter, an application under sections 65 and 66 of the Evidence Act was filed by the plaintiff stating that the plaintiff had submitted the certified will (by Notary) dated 21.03.1972 before the Court below. The original will is filed in some other case and plaintiff is not getting proper information about the said case nor is able to lay his hands on the original will.

The certified will which is filed in the case was certified by the Notary in the year 1975 and it is neither doctored nor frivolous document. It is prayed that since the will was certified by the Notary, it may be taken as a secondary evidence. The petitioners filed reply and stated that the will dated 21.3.1972 is forged and frivolous document. The said will was neither executed nor produced in any case. The plaintiff has not shown the description of the case and case number etc. If the will was already produced in some matter, how Notary can certify it in the year 1975. It is further stated that on the face of the document (will) filed by the plaintiff, it is clear that it is a manufactured/doctored document prepared by the plaintiff himself. It is further stated in the reply that in reply to defendant/petitioners'' application under Order 11 Rule 12 CPC, which was decided on 4.8.208, the plaintiff filed his affidavit on 15.9.2008 and informed the Court that the original documents are in his possession. After having taken the said stand on affidavit, the plaintiff is estopped and cannot be permitted to take a somersault from his earlier stand. In nutshell, it is stated that the plaintiff''s contention is not trustworthy and the said will does not fall within the ambit of ''secondary evidence''. The court below allowed the said application by impugned order which is called in question in the present matter.

Shri N.K. Gupta, learned counsel for the petitioners submits that the said document cannot be taken into account as a secondary evidence. He raised the same contentions which were raised in the reply filed by him (Annexure P/6).

Per Contra, Shri R.K. Soni, learned counsel for the other side, submits that there is no legal error which warrants interference of this Court under Article 227 of the Constitution.

I have heard the learned counsel for the parties and perused the record.

In my opinion, a proper reading of Section 63(2) read with illustrations below it makes clear that only those copies which are made from original by mechanical process and are compared with such copies are admissible as secondary evidence.

Justice Dipak Misra (as His Lordship then was) in Sunil Kumar and Another Vs. Smt. Anguri Choudhari and Another, , opined that when it is not disputed that neither the certified copy nor a true copy indicates and contains an endorsement and it was compared with original, the document does not meet the requirement of Section 63 of the Evidence Act. In another judgment in Haji Mohd. Islam and Another Vs. Asgar Ali and Another, , His Lordship opined that the other party denied the execution of the document. No proof was produced that the document was executed and it is in possession of the plaintiff. The copy filed was neither a certified copy nor a true copy of the original deed. It is further held that in absence of any proof and requirement of law, the said document cannot be treated as secondary evidence.

In the present case, the factum, existence and genuineness of the document is doubted by the other side. Respondent No. 1 by filing reply specifically stated that the original document in question is in his possession. However, he took a ''U'' turn later on and stated that the said original will is filed in some case. However, particulars of the case, case number and parties name etc. were not intimated by the plaintiff. Thus, the very existence of the document is doubtful. At present there is no material to show that the document in question sought to be introduced as secondary evidence is a copy by mechanical process from original and the person producing it has verified it nor there is any occasion for the court below to examine and compare the secondary evidence/copy with the original. Thus, in my opinion, the basic ingredient for bringing a case within the ambit of "secondary evidence" is absent in this matter. The Apex Court in Tukaram S. Dighole Vs. Manikrao Shivaji Kokate, opined that "to put the matter briefly, the general rule is that secondary evidence is not admissible until the non-production of primary evidence is satisfactorily proved."

In the present case, non-production of primary evidence is not satisfactorily proved by the plaintiff. At the cost of repetition, it may be remembered that the plaintiff has taken inconsistent stand about the availability of original document in question and then made bald and vague averments about filing of that document in some case without mentioning the details of the case. Thus, as per Tukaram S. Dighole (supra) also, the said document cannot be treated, as a general rule, as secondary evidence.

For the aforesaid cumulative reasons, in my opinion, the order passed by the court below cannot be permitted to stand. Resultantly, the order dated 27.1.2010 (Annexure P-1) to the extent it relates to the application under Sections 65 /66 of Evidence Act, is set aside. The application of the plaintiff preferred under Sections 65 /66 of the Evidence Act is dismissed. Petition is allowed. No costs.