2014 STPL(Web) 1627 P&H
[2014(2) CIVIL COURT CASES 658]
PUNJAB & HARYANA HIGH COURT
(L.N. MITTAL, J.)
PREM LATA
Petitioner
VERSUS
DWARKA PARSAD & ORS.
Respondents
C.R. No. 4913 of 2008-Decided on 23-8-2013.
Evidence Act, 1872 - Section 63(2) - Constitution of India, 1950 - Article 227 - Evidence - Secondary Evidence - Photostat copy - Prepared by mechanical process - Admissible - Revision Petition against dismissal - A party can be permitted to lead secondary evidence of a document on proving existence, execution and loss of original document - Admitted fact that petitioner summoned concerned official with record of Sanand but said official could not produce said record - There is sufficient ground for plaintiff defendant No. 1 petitioner to lead secondary evidence of said document - Held that petitioner is entitled to lead secondary evidence of Sannad in question subject to conditions stated - Impugned order is set aside - Application is allowed - Revision Petition allowed.
[Para 6 to 8]
Advocate(s): Mr. Anil Ksheterpal, for the Petitioner
Mr. Arun Jain, Sr. Advocate with Mr. D.S. Bishnoi, for the Respondent No.1.
JUDGMENT
L.N. Mittal, J. (Oral) - Defendant No.1-Prem Lata has approached this Court by way of instant revision petition filed under Article 227 of the Constitution of India impugning order dated 11.08.2008 (Annexure P5) passed by the trial Court thereby dismissing application (Annexure P4) filed by defendant No.1 seeking permission to lead secondary evidence of Sanand Taqseem Arazi Matrooka dated 04.07.1949.
2. Defendant No. 1 alleged in her application that vide Sanand dated 04.07.1949, suit land was allotted to Thakar Singh from whom defendants No.31 to 43 inherited the same and defendant No.1 has purchased the same from defendants No.31 to 43 vide registered sale deed dated 03.03.2004. Defendant No.1 claimed to be in a possession of photostat copy of Sanand dated 04.07.1949. It was alleged that on inquiry, defendants No.31 to 43 told the husband of defendant No.1 that the original Sanand had been lost. Defendant No.1 summoned concerned official from the office of Chief Settlement Commissioner with record of aforesaid Sanand, but after seeking adjournment, the official stated that the record was not traceable and was not in their office. In these circumstances, defendant No.1 had no alternative except to lead secondary evidence of the Sannad.
3. Respondent No. 1/plaintiff filed reply and opposed the application on various grounds. Very existence of the alleged Sanand was denied. It was also alleged that an attempt was made to get mutation incorporated in revenue record in favor of defendants No.31 to 43 but the mutation could not be sanctioned.
4. Learned trial Court vide order (Annexure P5) has dismissed the application (Annexure P4) filed by defendant No.1 who has, therefore, filed this revision petition to challenge the said order.
5. I have heard learned counsel for the parties and perused the case file.
6. Learned counsel for the petitioner contended that Sadhu Ram predecessor-in-interest of the plaintiff had filed suit vide plaint (Annexure PI) challenging the allotment of suit land in favor of Thakar Singh and others and in that suit, Sadhu Ram failed and, therefore, allotment of the suit land to Thakar Singh stood upheld. It was also submitted that the petitioner summoned the concerned official with record of the Sanand but the said official could not produce the said record. It was thus argued that there is sufficient ground for plaintiff defendant No. 1 petitioner to lead secondary evidence of the aforesaid document.
6A. On the other hand, learned counsel for respondent No.1- plaintiff contended that original Sanand has not seen the light of the day. It was also argued that name of Thakar Singh or his successors i.e. defendants No.31 to 43 was never entered in the revenue record. It was also argued that photostat copy of document is not admissible as secondary evidence of the document. In support of this contention, reliance has been placed on the judgment of Hon'ble Supreme Court in 1975 AIR SC1748 titled as Ashok Dulichand versus Madhavlal Dube and another and judgment of this Court in 2011 (1) Criminal Court Cases 886 (P&H) : 2011(1) RCR(Criminal) 356 titled as Mukesh Kumar alias Motta versus State of Haryana.
7. I have given my thoughtful consideration to the matter. A party can be permitted to lead secondary evidence of a document on proving existence, execution and loss of the original document. Permission to lead secondary evidence in the instant case can also be granted subject to proof of the aforesaid facts.
8. There is no absolute rule that photostat copy of a document is not admissible as secondary evidence. In the cases of Ashok Dulichand (supra) and Mukesh Kumar alias Motta (supra), it has not been laid down that in no circumstances, photostat copy of a document can be admitted as secondary evidence thereof. On the contrary, it is for the party seeking to produce the photostat copy as secondary evidence to depict that it is correct copy of the original document. Subject to proof of the same, photostat copy of a document is admissible as secondary evidence of the document in view of Section 63(2) of the Evidence Act, having been prepared by mechanical process.
9. For the reasons aforesaid, I find that the petitioner is entitled to lead secondary evidence of the Sannad in question subject to the conditions stated hereinbefore. Resultantly, instant revision petition is allowed and impugned order (Annexure P5) passed by the trial Court is set aside. Application (Annexure P4) filed by defendant No.1-petitioner is allowed and the petitioner is permitted to lead secondary evidence of the Sannad in question dated 04.07.1949 subject to proof of existence, execution and loss of the original document. I have not expressed any opinion regarding the existence or loss of the aforesaid document or regarding probative value thereof.
Since the suit is of the year 2004, the trial Court is directed to decide the same in accordance with law as expeditiously as possible keeping in view its docket.
[2014(2) CIVIL COURT CASES 658]
PUNJAB & HARYANA HIGH COURT
(L.N. MITTAL, J.)
PREM LATA
Petitioner
VERSUS
DWARKA PARSAD & ORS.
Respondents
C.R. No. 4913 of 2008-Decided on 23-8-2013.
Evidence Act, 1872 - Section 63(2) - Constitution of India, 1950 - Article 227 - Evidence - Secondary Evidence - Photostat copy - Prepared by mechanical process - Admissible - Revision Petition against dismissal - A party can be permitted to lead secondary evidence of a document on proving existence, execution and loss of original document - Admitted fact that petitioner summoned concerned official with record of Sanand but said official could not produce said record - There is sufficient ground for plaintiff defendant No. 1 petitioner to lead secondary evidence of said document - Held that petitioner is entitled to lead secondary evidence of Sannad in question subject to conditions stated - Impugned order is set aside - Application is allowed - Revision Petition allowed.
[Para 6 to 8]
Advocate(s): Mr. Anil Ksheterpal, for the Petitioner
Mr. Arun Jain, Sr. Advocate with Mr. D.S. Bishnoi, for the Respondent No.1.
JUDGMENT
L.N. Mittal, J. (Oral) - Defendant No.1-Prem Lata has approached this Court by way of instant revision petition filed under Article 227 of the Constitution of India impugning order dated 11.08.2008 (Annexure P5) passed by the trial Court thereby dismissing application (Annexure P4) filed by defendant No.1 seeking permission to lead secondary evidence of Sanand Taqseem Arazi Matrooka dated 04.07.1949.
2. Defendant No. 1 alleged in her application that vide Sanand dated 04.07.1949, suit land was allotted to Thakar Singh from whom defendants No.31 to 43 inherited the same and defendant No.1 has purchased the same from defendants No.31 to 43 vide registered sale deed dated 03.03.2004. Defendant No.1 claimed to be in a possession of photostat copy of Sanand dated 04.07.1949. It was alleged that on inquiry, defendants No.31 to 43 told the husband of defendant No.1 that the original Sanand had been lost. Defendant No.1 summoned concerned official from the office of Chief Settlement Commissioner with record of aforesaid Sanand, but after seeking adjournment, the official stated that the record was not traceable and was not in their office. In these circumstances, defendant No.1 had no alternative except to lead secondary evidence of the Sannad.
3. Respondent No. 1/plaintiff filed reply and opposed the application on various grounds. Very existence of the alleged Sanand was denied. It was also alleged that an attempt was made to get mutation incorporated in revenue record in favor of defendants No.31 to 43 but the mutation could not be sanctioned.
4. Learned trial Court vide order (Annexure P5) has dismissed the application (Annexure P4) filed by defendant No.1 who has, therefore, filed this revision petition to challenge the said order.
5. I have heard learned counsel for the parties and perused the case file.
6. Learned counsel for the petitioner contended that Sadhu Ram predecessor-in-interest of the plaintiff had filed suit vide plaint (Annexure PI) challenging the allotment of suit land in favor of Thakar Singh and others and in that suit, Sadhu Ram failed and, therefore, allotment of the suit land to Thakar Singh stood upheld. It was also submitted that the petitioner summoned the concerned official with record of the Sanand but the said official could not produce the said record. It was thus argued that there is sufficient ground for plaintiff defendant No. 1 petitioner to lead secondary evidence of the aforesaid document.
6A. On the other hand, learned counsel for respondent No.1- plaintiff contended that original Sanand has not seen the light of the day. It was also argued that name of Thakar Singh or his successors i.e. defendants No.31 to 43 was never entered in the revenue record. It was also argued that photostat copy of document is not admissible as secondary evidence of the document. In support of this contention, reliance has been placed on the judgment of Hon'ble Supreme Court in 1975 AIR SC1748 titled as Ashok Dulichand versus Madhavlal Dube and another and judgment of this Court in 2011 (1) Criminal Court Cases 886 (P&H) : 2011(1) RCR(Criminal) 356 titled as Mukesh Kumar alias Motta versus State of Haryana.
7. I have given my thoughtful consideration to the matter. A party can be permitted to lead secondary evidence of a document on proving existence, execution and loss of the original document. Permission to lead secondary evidence in the instant case can also be granted subject to proof of the aforesaid facts.
8. There is no absolute rule that photostat copy of a document is not admissible as secondary evidence. In the cases of Ashok Dulichand (supra) and Mukesh Kumar alias Motta (supra), it has not been laid down that in no circumstances, photostat copy of a document can be admitted as secondary evidence thereof. On the contrary, it is for the party seeking to produce the photostat copy as secondary evidence to depict that it is correct copy of the original document. Subject to proof of the same, photostat copy of a document is admissible as secondary evidence of the document in view of Section 63(2) of the Evidence Act, having been prepared by mechanical process.
9. For the reasons aforesaid, I find that the petitioner is entitled to lead secondary evidence of the Sannad in question subject to the conditions stated hereinbefore. Resultantly, instant revision petition is allowed and impugned order (Annexure P5) passed by the trial Court is set aside. Application (Annexure P4) filed by defendant No.1-petitioner is allowed and the petitioner is permitted to lead secondary evidence of the Sannad in question dated 04.07.1949 subject to proof of existence, execution and loss of the original document. I have not expressed any opinion regarding the existence or loss of the aforesaid document or regarding probative value thereof.
Since the suit is of the year 2004, the trial Court is directed to decide the same in accordance with law as expeditiously as possible keeping in view its docket.
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