Simar Pal Singh vs Hakam Singh

K. Kannan, J.—The revision is against an order rejecting the plea of the petitioner to receive the secondary evidence of a document on the ground that the original is lost. The petition is dismissed on a reasoning by the learned Judge that the loss of the receipt was not proved.

At the time when a petition is filed for producing secondary evidence nothing more needs to be proved than stating one of the grounds as required u/s 65 to justify the reception of secondary evidence. Whether the grounds do really exist or not could only be tested in the cross-examination if a basis is laid in the chief examination. The trial Court shall not receive secondary evidence if evidence is not even tendered for justification of production of the secondary evidence. A matter which is essentially one of evidence could not be expected to be proved before consideration of the document by the Court. Even mere marking of the document will not supplant the requirement of proof in a manner known to law.

The Hon''ble Supreme Court has laid down in its decision Bipin Shantilal Panchal v. State of Gujarat (2001) 3 S.C.C. 1 while setting out the procedure for receiving documents, when an objection is taken during the trial. The Hon''ble Supreme Court has castigated the practice of holding up trial on objections taken at the time of tendering documents in evidence. Inviting Courts to pass orders on objections has been termed by the Hon''ble Supreme Court as "archaic practice". That decision was rendered while dealing with receipt of a document under Criminal Procedure Code, but the procedure laid down in the said judgment has been adopted in several other cases even for documents tendered under the Civil Procedure Code.

The order of the Court below is set aside and the petitioner shall be permitted to adduce such evidence as he thinks necessary to lay a foundation for receipt of secondary evidence and the fact of loss or otherwise would be tested in the cross-examination and an inference or reliance on such a document could be taken up for consideration at the time of final disposal of the suit.

The civil revision petition is allowed in the above terms.