Raj Rani vs Jamuna Devi

Swatanter Kumar, J.—An application for permission to lead secondary evidence filed by the plaintiff was dismissed by the Civil Judge, (Junior Division), Rewari, vide order dated 4.6.1998, which is impugned in this Revision Petition.

A suit for permanent injunction was filed. During the pendency of the said suit, the plaintiff moved this application to lead secondary evidence in relation to the certified copy of the compromise deed alleged to have been entered into between the parties. The application was opposed by the responded and was dismissed, as already noticed.

The only reasoning given by the learned trial Court for declining the said application is that the original of the document in question or its existence has not been proved on record. To support this reasoning, learned trial Court has further referred that as photo copy could be produced by super imposition, thus genuineness of the document would be doubtful and hence secondary evidence could not be allowed.

Learned Counsel appearing for the respondent while supporting the said reasoning, referred to the statements of PW.2 and PW.3 to stress the very execution of the document has not been proved; nor its existence has been con firmed by these witnesses. According to him, there was a clear contradiction between the statements of PW2 and PW3 and as such the court has rightly rejected the application.

At the very outset, it would be necessary to refer to the statement of PW2, who has clearly stated that a compromise was entered into between the parties and he had written the instrument of the compromise himself, which he identified and the copy thereof was marked ''A''. He further stated that the records are destroyed after a period of three years. He admitted the issuance of the certified copy. Nothing material could be brought out in his cross-examination.

Similarly, PW.3 Vice President of Akhil Bhartiya Mahila Prishad also stated that the compromise mark ''A'' was entered into and as the period of more than five years have passed from the date the compromise in question was arrived at, the letter was destroyed.

I am unable to see any contradiction in the statements of these two witnesses. Of course, there was a variation in the period after which the document was destroyed but that cannot be termed as a contradiction. The court is not concerned with the merits of the case at this stage, but the Court is only concerned whether the document was executed, its existence and lost have been proved on the date when the application for secondary evidence is filed. In the present case not only the execution of the document in question is proved but the person who has written the compromise had himself appeared in the witness box. Issuance of certified copy was also admitted. Thus, existence and execution of the document has been proved by a definite cogent evidence by the applicant. Even the destruction of the document has been clearly admitted by both the witnesses. Whether it was after a short period or a longer period would not be so material that it would have the effect of completely wiping out the positive evidence produced on record. The said document is not only signed by the parties, but has been endorsed and written by others. As such primarily even the genuineness of this document cannot be doubted. Both the witnesses, PW.2 and PW.3 cannot be said to be interested witnesses who have deposed in favour and against the party. They must be presumed to have been acting in normal course of business of the parishad.

It is a well settled principle of law that the contents of a document can be proved either by primary or secondary evidence. In order to lead secondary evidence, a person normally must prove the execution and existence of the original document and its loss. The legislative has used the expressions in section 65(c) of the Indian Evidence Act purposely and to clearly indicate that when the original is destroyed or lost and the party offering evidence and in regard to its content, is unable to produce the original but for its own fault would be entitled to lead secondary evidence. In other words, it is the conduct of the party, execution of the document, existence of the original and its lost or destruction are the basic ingredients, which would be taken into consideration by the court while considering the application for permission to lead secondary evidence. In the present case, there is no justification for the conclusion arrived at by the learned trial Court to say that statements of PW. 2 and PW. 3 does not prove the existence of the compromise. The other factors would obviously get irrelevant if the basic three ingredients afore indicated are satisfied by the applicant before the Court.

For the reasons aforestated, I am of the considered view that the impugned order dated 4.6.1998 suffers from an error of jurisdiction apparent on the face of the record. The learned trial court has erred in exercising the jurisdiction contrary to the settled principle of law.

Consequently, the order dated 4.6.1998 is set aside. The application of the petitioner for leading secondary evidence in relation of the compromise ''A'' is allowed. The trial court shall proceeded in accordance with law.

Interim order shall stands vacated.