Smt. Shakuntla Singla and Others vs Chander Parkash and Another

Ram Chand Gupta, J.—The present revision petition has been filed under Article 227 of the Constitution of India for setting aside order dated 11.9.2009, passed by learned Additional Civil Judge, Senior Division, Jind, vide which application, Annexure P9, filed by Petitioners-Defendant for leading secondary evidence of alleged certificates /kabalas dated 14.1.1929, 3.9.1936 and 3.2.1928 was dismissed.

I have heard learned Counsel for the parties and have gone through the whole record carefully including the impugned order passed by learned trial Court.

Facts relevant for the decision of present revision petition are that a suit for permanent injunction was filed by Respondent No. 1-Plaintiff against present Petitioners-Defendant and Municipal Council, Jind, restraining them from raising any type of construction over the portion of land marked as `ABCD'' shown in red colour in the site plan attached with the plaint, and duly described in the heading of the plaint.

Suit was contested by present Petitioners-Defendant. Evidence of Plaintiff-Respondent No. 1 was closed. Most of the evidence of Defendants was also recorded when the present application was filed. The suit pertains to the year 2003. The application was dismissed by learned trial Court by observing as under:

After giving due deliberation to the rival contentions advanced by the learned Counsel for the parties and having gone through the record on case file, I am of the considered view that basic re-requisite for allowing secondary evidence to be led, the party should lay foundations by way of proving the genuineness of the Photostat copy and showing specifically as to when and under what circumstances the original document was lost/destroyed. Unless the party lays down the foundation, permission of leading secondary evidence cannot be given, whereas in the present case, the Defendants have neither specified as to when the original documents were lost/destroyed nor any report of loss of the document has been filed. Further there is nothing on the record to show that the Photostat copy was genuine. Even no record of the certificates having been issued by the revenue department has been brought forth. Thus, I am of the view that the Defendants have not laid the foundations for leading secondary evidence in respect of the certificates/Kabalas.

It has been contended by learned Counsel for the Petitioners-Defendant that he is in possession of only photocopies of certificates/Kabalas dated 14.1.1929, 3.9.1936 and 3.2.1928, which have been placed on the record of learned trial Court and that as the documents are very old and the same contain stamp of then Maharaja of Jind, he be allowed to tender the same in evidence by way of secondary evidence.

On the other hand it has been contended by learned Counsel for Respondent No. 1-Plaintiff that photocopies of original cannot be received as secondary evidence in terms of Section 63 read with Section 65 of the Indian Evidence Act (hereinafter to be referred as the `Act'') and hence, it is contended that no illegality has been committed by learned trial Court in dismissing the application filed by Petitioners-Defendant.

It is pertinent to reproduce Sections 63 and 65 of the Act, which read as under:

63: Secondary evidence-Secondary evidence means and includes-(1)certified copies given under the provisions hereinafter contained;

(2)copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy and copies compared with such copies;

(3)copies made from or compared with the original; (4)counterparts of documents as against the parties who did not execute them; (5)oral accounts of the contents of a document given by some person who has himself seen it.

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 consists 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.

Law has also been settled by Hon''ble Apex Court in Smt. J. Yashoda v. Smt. K. Shobha Rani 2007(2) RCR 840 that photostat copy of the original cannot be received as secondary evidence in terms of Section 63 of Indian Evidence Act. It is pertinent to reproduce the relevant paragraphs of the judgment of Hon''ble Apex Court, which read as under:

Secondary evidence, as a general rule is admissible only in the absence of primary evidence. If the original itself is found to be inadmissible through failure of the party, who files it to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contends.

Essentially, secondary evidence is an evidence which may be given in the absence of that better evidence which law required to be given first, when a proper explanation of its absence is given. The definition in Section 63 is exhaustive as the Section declares that secondary evidence "means and includes" and then follow the five kinds of secondary evidence.

The rule which is the most universal namely that the best evidence the nature of the case will admit shall be produced, decides this objection that rule only means that, so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it. Section 65 deals with the proof of the contents of the documents tendered in evidence. In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. u/s 64, documents are to be provided by primary evidence. Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said Section must be fulfilled before secondary can be admitted. Secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the Section. In Ashok Dulichand Vs. Madahavlal Dube and Another, , it was inter alia held as follows:

After hearing the learned Counsel for the parties, we are of the opinion that the order of the High Court in this respect calls for no interference. According to Clause (a) of Section 65 of Indian Evidence Act, Secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in 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 of any person legally bound to produce it, and when, after the notice mentioned in Section 66 such person does not produce it. Clauses (b) to (g) of Section 65 specify some other contingencies wherein secondary evidence relating to a document may be given, but we are not concerned with those clauses as it is the common case of the parties that the present case is not covered by those clauses. In order to bring his case within the purview of Clause (a) of Section 65, the Appellant filed applications on July 4, 1973, before Respondent No. 1 was examined as a witness, praying that the said Respondent be ordered to produce the original manuscript of which, according to the Appellant, he had filed photostat copy. Prayer was also made by the Appellant that in case Respondent No. 1 denied that the said manuscript had been written by him, the photostat copy might be got examined from a handwriting expert. The Appellant also filed affidavit in supports of his applications. It was however, nowhere stated in the affidavit that the original document of which the photostat copy had been filed by the Appellant was in the possession of Respondent No. 1. There was also no other material on the record to indicate the original document was in the possession of Respondent No. 1. The Appellant further failed to explain as to what were the circumstances under which the photostat copy was prepared and who was in possession of the original document at the time its photograph was taken. Respondent No. 1 in his affidavit denied being in possession appeared to the High Court to be not above suspicion. In view of all the circumstances, the High Court to be not above suspicion. In view of all the circumstances, the High Court came to the conclusion that no foundation had been laid by the Appellant for leading secondary evidence in the shape of the photostat copy. We find no infirmity in the above order of the High Court as might justify interference by this Court.

Hence, in view of Sections 63 and 65 of the Act and the legal proposition laid down by Hon''ble Apex Court in Smt. J. Yashoda''s case (supra), the case of present Petitioners-Defendant for producing Annexures marked A, B and C by way of secondary evidence is not covered by any of the clauses of Sections 63 and 65 of the Act. Hence, in view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned trial Court in passing the impugned order and that grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court.

Moreover, law is well settled in Surya Dev Rai v. Ram Chander Rai and Ors. 2004(1) RCR 147 that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction by this Court. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and a grave injustice or gross failure of justice has occasioned thereby.

Hence, the present revision petition is hereby dismissed being devoid of any merit.