Sh. Munish Kapoor and Another vs Smt. Asha Gupta and Others

Deepak Gupta, J.—This petition is directed against the order dated 25.11.2010 passed by the learned Civil Judge (Sr. Division), Shimla whereby he allowed the application filed by the Plaintiffs u/s 65 of the Indian Evidence Act and permitted the Plaintiffs to prove documents by leading secondary evidence.

At the very outset, I am constrained to observe that the learned trial Court did not take into consideration the provisions of Section 65 of the Indian Evidence Act which read as follows:

Cases in which secondary evidence relating to documents may be given.- Secondary evidence may be given of the existence condition or contents of a document in the following cases-

(a) when the original is shown or appears to be in the possession or power- of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it;

(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;

(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;

(d) when the original is of such a nature as not to be easily movable;

(e) when the original is a public document within the meaning of Section 74;

(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in [India], to be given in evidence;

(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.

In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but No. other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them and who is skilled in the examination of such documents.

There are certain conditions which must be fulfilled before an order can be passed, permitting any party to lead secondary evidence. First of all, a party has to show that the originals are in possession of some other person, over whom the party has No. control and/or that the person has refused to produce the original, then a party can lead secondary evidence. It must be shown that the existence, condition or contents of the original have been proved in writing. The other necessary conditions are that the original has been destroyed or lost, or is not easily movable. It is one of the necessary condition of Section 65 is that there must be some material on record to show that such a document at some time existed. There must be some prima facie material to show that the document existed and was delivered to a particular person. Secondly, a Court while allowing an application for leading secondary evidence must specify, what are the documents which are to be proved by leading secondary evidence. The learned trial Court has passed an omnibus order permitting the Plaintiffs to prove almost all documents by leading secondary evidence without even prima facie ascertaining whether such documents were inexistence or how they could be proved.

Coming to the case in hand. The application moved by the Plaintiffs first related to the records of the Police Station, Sadar, Shimla. I have seen the original record. Out of the various documents relating to the police station, two documents i.e. letter dated 26.5.1999 on the letter head of Hotel Himani Residency and another letter of June 1999 on the letter head of News Post wherein photocopy of postal receipts is affixed dated 7.6.1999. No. doubt, these documents are photocopies, but on the said photocopies there is photocopy of the postal receipt also, which indicates that such documents were in fact posted and sent to the Police Station, Sadar. Therefore, the Plaintiffs are definitely entitled to lead secondary evidence to prove these two documents. As far as the DDR is concerned, No. doubt, the MHC, Police Station, Sadar, Shimla has stated that the record has been destroyed. However, in my view he must be re-examined to show what are the rules regarding destruction of DDR and under whose order the DDR was destroyed. Only thereafter secondary evidence for proving this DDR can be allowed. There are photocopies of other documents on record which are not written by the Plaintiffs, but are allegedly written by some employee(s) of the Plaintiffs. Without first examining the employee to show that he has actually written the letter and delivered the same to the Police Station, Sadar, Shimla, only on the basis of the statement of the MHC Police Station, Sadar that No. record is available, secondary evidence could not be permitted.

Now coming to the Clerk/In-charge from the office of Town and Country Planning, Kasumpti, Shimla-9, only two letters are sought to be produced. I find from the record that these two letters are addressed by the Plaintiff herself and the plan allegedly attached with the said letters. These are documents which should be in the possession of the Plaintiff herself and, therefore, No. secondary evidence can be led, unless it is shown that the said original letters and plan have been destroyed or lost.

As far as the third document, i.e. the demarcation report is concerned, that can be proved by leading secondary evidence. Admittedly, the original is destroyed and, therefore, secondary evidence can be led.

In view of the above discussion, the present petition is partly allowed and the order dated 25.11.2010 passed by learned trial Court is modified. At this stage, the Plaintiff shall only be allowed to prove the documents specifically referred to above by way of leading secondary evidence. Needless to say that if the employees of the Plaintiff are examined or other material is placed on record to show that certain documents existed and have since been destroyed, the Plaintiff can again apply for leading secondary evidence.

The petition is disposed of in the aforesaid terMs. No. costs.