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Saturday, November 7, 2015

whether the High Court is justified in reversing the order passed by the Trial Court allowing the defendant-appellant to lead secondary evidence of the contents of the documents.= It is well settled that if a party wishes to lead secondary evidence, the Court is obliged to examine the probative value of the document produced in the Court or their contents and decide the question of admissibility of a document in secondary evidence. At the same time, the party has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. It is equally well settled that neither mere admission of a document in evidence amounts to its proof nor mere making of an exhibit of a document dispense with its proof, which is otherwise required to be done in accordance with law. In the case of M. Chandra vs. M. Thangamuthu, (2010) 9 SCC 712, this Court considered the requirement of Section 65 of the Evidence Act and held as under:- “47. We do not agree with the reasoning of the High Court. It is true that a party who wishes to rely upon the contents of a document must adduce primary evidence of the contents, and only in the exceptional cases will secondary evidence be admissible. However, if secondary evidence is admissible, it may be adduced in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in another form. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It should be emphasised that the exceptions to the rule requiring primary evidence are designed to provide relief in a case where a party is genuinely unable to produce the original through no fault of that party.”After considering the entire facts of the case and the evidence adduced by the appellant for the purpose of admission of the secondary evidence, we are of the view that all efforts have been taken for the purpose of leading secondary evidence. The trial court has noticed that the photocopy of the Exhibit DW-2/B came from the custody of DEO Ambala and the witness, who brought the record, has been examined as witness. In that view of the matter, there is compliance of the provisions of Section 65 of the Evidence Act. Merely because the signatures in some of the documents were not legible and visible that cannot be a ground to reject the secondary evidence. In our view, the trial court correctly appreciated the efforts taken by the appellant for the purpose of leading secondary evidence.For the reasons aforesaid, the impugned order passed by the High Court cannot be sustained in law. The appeal is accordingly allowed and the order passed by the High Court is set asideHowever, we make it clear that mere admission of secondary evidence, does not amount to its proof. The genuineness, correctness and existence of the document shall have to be established during the trial and the trial court shall record the reasons before relying on those secondary evidences.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION


                       CIVIL APPEAL NO. 13361 OF 2015
                 (Arising out of SLP (C) No. 29621 of 2014)


Rakesh Mohindra                              Appellant (s)

                                   versus
|Anita Beri and others                                           |
|Respondent(s)                                                   |
|                                                                |


                               J U D G M E N T

|                                                         |
|M.Y. Eqbal, J.:                                          |


      Leave granted.

2.    This appeal by special leave is directed against order dated  2.9.2014
passed by learned Single Judge of the High Court  of  Himachal  Pradesh  who
set aside the order rendered by the trial court  permitting  the  defendant-
appellant to lead secondary evidence in the Civil Suit filed  by  respondent
no.1.


3.    The short question that arises for consideration by this Court  is  as
to whether the High Court is justified in reversing the order passed by  the
Trial Court allowing the defendant-appellant to lead secondary  evidence  of
the contents of the documents.

4.    The facts of the case lie in a narrow compass.

5.    The respondents-plaintiffs have filed a suit under Sections 34 and  38
of the Specific  Relief  Act,  1963  for  declaration  that  the  appellant-
defendant has no right, title or interest over  the  suit  property  in  any
manner  and  plaintiffs  are  in  possession  of  the  same.   Consequently,
defendant be restrained from causing any type of loss, injury and doing  any
such act which may in any manner, cause prejudice to  the  user,  possession
and title of the plaintiff qua the suit property.



6.    The subject matter of the suit is part of the land defined  as  Survey
No.  41,  Kasauli  Cantt.  Tehsil  Kasauli  and  structures/buildings   more
specifically known as “Dharma Prakash, Homestead”. One late Sh.  Duni  Chand
Advocate was owner in  possession  of  land  comprised  in  Survey  No.  41,
measuring  2.31  acres  described  as  “Kildare  Estate”  Homestead   Dharma
Prakash. Late Sh. Duni Chand, during his life  time  executed  a  gift  deed
with regard to the property owned by him which was registered as deed No.  2
with Sub Registrar, Kasauli. He gifted his properties  to  his  son  Justice
late Sh. Tek Chand. Justice late Sh. Tek  Chand  became  owner-in-possession
of the suit property. Justice  late  Sh.  Tek  Chand  expired  on  16.6.1996
leaving behind two daughters Smt. Anila Sood and Smt.  Anita  Beri  and  one
son Sh. Vikram Dhanda. Justice late Sh.  Tek  Chand  during  his  life  time
executed a legal and valid ‘will’ in favour of plaintiff No. 2,  Smt.  Anita
Beri, which was duly registered with Sub Registrar Chandigarh, as  deed  No.
410 dated 19.6.1984. The mother of defendant  was  step  sister  of  Justice
late Sh. Tek Chand. He was using portion of house known as ‘Homestead’  with
the permission of plaintiff No. 2, namely, Smt.  Anita  Beri.  She  came  to
know that defendant  was  misusing  the  license  and  raised  some  illegal
construction in the shape of platform,  so  as  to  use  the  same  for  the
purpose of car parking.



7.    According to the plaintiff, defendant has no right, title or  interest
over the suit property and as such could not change the nature of the  same.
A legal notice was issued on 5.11.2006. Reply was sent by the  defendant  to
the same. The defendant has also started causing  obstruction  to  the  path
which leads  from  circular  road  to  ‘Homestead  cottage’  and  ‘Homestead
building’. Plaintiff No. 2 has requested  the  defendant  not  to  lock  the
gate. However, the lock  on  the  gate  has  been  put  to  cause  temporary
obstruction, hindrance and prejudice to the user of  the  suit  property  by
plaintiff No. 2.



8.    On the other hand, the defendant-appellant’s case is  that  they  have
inherited the property from Smt. Vijaya Kumari who became the owner  of  the
suit property on the basis of the gift deed  dated  19.03.1965.  Appellant’s
further case is that Justice Tek Chand had issued  a  letter  of  disclaimer
dated  24.08.1982.   According  to  the  appellant,  the  said   letter   of
disclaimer was handed over by Justice Tek Chand to his  sister  Smt.  Vijaya
Kumari who in turn handed over to the appellant. On the basis of  letter  of
disclaimer, the  appellant  vide  letter  dated   21.07.2001  requested  the
authority, namely, Defence Estate Officer (DEO), Ambala Cantt for  effecting
mutation of the property in his name.



9.    On these backgrounds, the defendant filed an application in the  Trial
Court under Section 65 of the Evidence Act seeking permission to  prove  the
letter of disclaimer executed by Justice  Tek  Chand  by  way  of  secondary
evidence.  For that purpose, the defendant summoned the record of  GLR  from
the office of DEO, Ambala who is said to be the  custodian  of  the  record.
According to the appellant,  at  the  time  of  sanction  of  mutation  with
respect  to  the  suit  property,  the  appellant  had  filed  the  original
affidavits of the co-sharers  along with the letter of  disclaimer  executed
by Justice Tek Chand with one Photostat set lying  in  the  office  of  DEO,
Ambala.



10.   For the purpose of deciding the application under Section  65  of  the
Evidence Act, the appellant examined the concerned official to  produce  the
record available in the said office.  On the basis of the evidence given  by
the witness, who produced the record and  the  evidence  of  defendant,  the
Trial Court allowed the application and admitted the  letter  of  disclaimer
to be used as secondary evidence.



11.   As averred in the application, the defendant has summoned  the  record
of General Land Register from the  Office  of  D.E.O.  Ambala,  who  is  the
custodian of the record.  It  is  defendant’s  case  that  at  the  time  of
sanction of the mutation with regard to the suit property he had  filed  the
original affidavits of the  co-sharers  including  affidavits  and  original
letter of disclaimer of late Justice Sh. Tek Chand with  one  Photostat  set
of the same in the office of D.E.O. Ambala. On the  basis  of  the  original
letter of disclaimer and affidavits,  mutation  of  the  suit  property  was
sanctioned in favour of the deponent. The concerned  official  produced  the
original record in the Court on 4.7.2013 except  the  letter  of  disclaimer
executed by late Justice Sh. Tek  Chand  on  24.8.1982,  in  favour  of  Sh.
Harish Chandra Dhanda and Smt. Vijaya Kumari, the mother of  the  applicant.
The original disclaimer letter is supposed to be in the said office but  the
concerned official made statement on oath in the Court that the original  is
not in their office and their office has Photostat  copy  of  the  original,
and therefore, he produced the Photostat copy of the  letter.  According  to
the  defendant,  despite  his  efforts,  the  original  of  DW-2/B  was  not
traceable and has been misplaced/lost from the Office of D.E.O.  Ambala.  In
reply to the application, it was denied that the letter of  disclaimer  ever
existed or Photostat of the same was ever made. It  has  been  pleaded  that
late Justice  Sh.  Tek  Chand  never  executed  disclaimer  letter  and  the
Photostat copy was a forged one.



12.   Allowing the application of the defendant and granting  leave  of  the
court to lead  secondary  evidence  qua  document  Ext.DW-2/B,  trial  court
observed that:

“The photocopy Ext.DW-2/B has come from the custody of DEO  Ambala  and  the
applicant has been able to comply with the provision of Section  65  of  the
Indian Evidence Act as it has come in evidence that  the  original  document
i.e. letter of disclaimer Ext.DW-2/B was handed over  by  the  applicant  to
DEO Ambala.  In view of the aforesaid  this  court  is  satisfied  that  the
original document stands misplaced and the  applicant  is  allowed  to  lead
secondary evidence with respect to the  document  Ext.DW-2/B  as  enviasaged
under Section 65(c) of the Indian Evidence Act and  both  these  issues  are
decided in favour of the applicants and against the respondents.”



13.   Learned  Single  Judge  of  the  High  Court  in  the  civil  revision
preferred by the plaintiff-respondent no.1 set aside the aforesaid order  of
the trial court.


14.   Hence, this appeal by special leave by the defendant.

15.   As a general rule, documents are proved by leading  primary  evidence.
Section 64 of the Evidence Act provides that documents  must  be  proved  by
the primary evidence except in cases mention in Section 65 of  the  Evidence
Act.  In the absence  of  primary  evidence,  documents  can  be  proved  by
secondary evidence as contemplated under Section 63 of the Act  which  reads
as under: -
“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 documents given by  some  person  who
has himself seen it.
Illustration:
(a) A photograph of an original  is  secondary  evidence  of  its  contents,
though the two have not been compared,  if  it  is  proved  that  the  thing
photographed was the original.
(b) A copy compared with a copy of a letter made by  a  copying  machine  is
secondary evidence of the contents of the letter, if it is  shown  that  the
copy made by the copying machine was made from the original.
(c) A copy transcribed  from  a  copy,  but  afterwards  compared  with  the
original, is secondary  evidence;  but  he  copy  not  so  compared  is  not
secondary evidence of the original, although the  copy  from  which  it  was
transcribed was compared with the original.
(d) Neither an oral account of a copy compared with  the  original,  nor  an
oral account of a photograph or machine copy of the original,  is  secondary
evidence of the original.”


16.   Section 65 of  the  Act  deals  with  the  circumstances  under  which
secondary  evidence  relating  to  documents  may  be  given  to  prove  the
existence, condition or contents of the documents. For  better  appreciation
Section 65 of the Act is quoted herein below:-
“65. 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 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 40[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  it
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, 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.”



17.   The pre-conditions  for  leading  secondary  evidence  are  that  such
original documents could not be produced  by  the  party  relied  upon  such
documents in spite of best efforts, unable to  produce  the  same  which  is
beyond their control.  The party sought to produce secondary  evidence  must
establish for  the  non-production  of  primary  evidence.   Unless,  it  is
established that the original documents is lost or  destroyed  or  is  being
deliberately withheld by the party in respect of that document sought to  be
used, secondary evidence in respect of that document cannot accepted.


18.   The High Court in the impugned order noted the following :-
“9. There is no averment about Ext. DW-2/B in  the  Written  Statement.  The
Written  Statement  was  filed  on  19.2.2007.  DW-2/B  infact  is  only   a
photocopy. The plaintiffs are claiming  the  property  on  the  basis  of  a
registered will deed executed in  her  favour  in  the  year  1984.  It  was
necessary for the defendant to prove that in what manner the document  dated
24.8.1982 was executed. The defendant while appearing as AW-1  has  admitted
in his cross-examination that except in his affidavit Ext.  AW-1/A,  he  has
not mentioned in any document that the letter of disclaimer was executed  by
Justice late Sh. Tek Chand in his presence. The statement of DW-2  does  not
prove that  Ext.  DW-2/A,  ever  existed.  DW-2  Sh.  Gurcharan  Singh,  has
categorically admitted in his cross-examination that he has not brought  the
original of Ext. DW- 2/B. He has also admitted  that  on  Ext.  DW-2/B,  the
signatures of P.C. Danda were not legible. Volunteered that, those were  not
visible. The learned trial Court has completely misread the oral as well  as
the documentary evidence, while allowing the application  under  Section  65
of the Indian Evidence Act, 1872, more particularly, the statements of  DW-2
Gurcharan Singh and DW-3 Deepak Narang. The applicant has  miserably  failed
to comply with the provisions of Section 65  of  the  Indian  Evidence  Act,
1872. The learned trial Court has erred by coming  to  the  conclusion  that
the applicant has taken sufficient steps to produce document Ext. DW- 2/B.”



19.   The High Court, following the ratio decided by this Court in the  case
of J. Yashoda vs. Smt. K. Shobha Rani, AIR 2007  SC  1721  and  H.  Siddiqui
(dead) by lrs. vs. A. Ramalingam, AIR 2011 SC 1492, came to  the  conclusion
that the defendant failed to  prove  the  existence  and  execution  of  the
original documents and also failed to prove that he  has  ever  handed  over
the original of the disclaimer letter dated 24.8.1982  to  the  authorities.
Hence, the High Court is of the view that no case is made out  for  adducing
the secondary evidence.

20.   The witness DW-2, who is working as UDC in the office  of DEO,  Ambala
produced the original GLR register.  He has produced four  sheets  of  paper
including a photo copy of letter of disclaimer.   He  has  stated  that  the
original documents remained in the custody  of  DEO.  In  cross-examination,
his deposition is reproduced hereinbelow:-
“xxxxxxxx by Sh. M.S. Chandel, Advocate for the plaintiff No.2.
 I have not brought the complete file along with the record.   I  have  only
brought those documents which were summoned after taking  up  the  documents
from the file.  As on today, as per the GLR, Ex.DW-2/A, the name  of  Rakesh
Mohindra is not there. His name was deleted vide order  dated  29.8.2011.  I
have not brought the original of Ex.DW-2/B.  It is  correct  that  Ex.DW-2/D
does not bear the signatures of Sh. P.C. Dhanda.   Volunteered.:  These  are
not legible.  Ex.DW-2/C is signed but the signatures  are  not  leible.   On
the said document the signatures of the attesting officer  are  not  legible
because the document became wet.  I cannot say whose  signatures  are  there
on these documents.  On Ex.DW-2/E the signatures at the place deponent  also
appears to have become illegible because of water. Ex.DW-2/F also bears  the
faded signatures and only Tek Chand is legible on  the  last  page.   It  is
incorrect to suggest that the last page does not have the signatures of  the
attesting authority.  Volunteered: These are faded, but  not  legible.   The
stamp on the last paper is also not legible.   There  is  no  stamp  on  the
first and second page.  In our account, there is no family  settlement,  but
only acknowledgement of family settlement.  I do not know how many  brothers
Rakesh Mohindra has. It is correct that the original of Ex.DW-2/H  does  not
bear the signatures of Sh. Abhay Kumar.  I do not  know  whether  Sh.  Abhay
Kumar Sud and Rakesh  Mohindra  are  real  brothers.   The  above  mentioned
documents were  neither  executed  nor  prepared  in  my  presence.   It  is
incorrect to suggest that the above mentioned documents are forged.   It  is
incorrect to suggest that because of this reason  I  have  not  brought  the
complete file.”

 21.  In the case of Rai Baijnath (dead)  by  Kedarnath  Goenka  vs.Maharaja
Sir pavaneshwar Prasad Singh, AIR 1922 Privy  Council  page  54,  a  similar
question came for  consideration  as  to  the   admissibility  of  secondary
evidence in case of loss of  primary  evidence.    Lord  Phillimore  in  the
judgment observed:-
“ It is, no doubt, not very likely that such a deed would be  lost,  but  in
ordinary cases, if the witness in whose custody the deed should be,  deposed
to  its  loss,  unless  there  is  some  motive  suggested  for  his   being
untruthful,  his  evidence  would  be  accepted  as  sufficient  to  let  in
secondary evidence of the deed.”


22.   It is well settled that if a party wishes to lead secondary  evidence,
the Court is  obliged  to  examine  the  probative  value  of  the  document
produced in  the  Court  or  their  contents  and  decide  the  question  of
admissibility of a document in secondary evidence.  At the  same  time,  the
party has to lay down the factual foundation to establish the right to  give
secondary evidence where the original document cannot be  produced.   It  is
equally well settled that neither mere admission of a document  in  evidence
amounts to its proof  nor mere making of an exhibit of a  document  dispense
with its proof, which is otherwise required to be done  in  accordance  with
law.

23.   In the case of M. Chandra vs. M. Thangamuthu, (2010) 9 SCC  712,  this
Court considered the requirement of Section 65 of the Evidence Act and  held
as under:-
“47. We do not agree with the reasoning of the High Court. It is  true  that
a party who wishes to rely upon the  contents  of  a  document  must  adduce
primary evidence of the contents, and only in  the  exceptional  cases  will
secondary  evidence  be  admissible.  However,  if  secondary  evidence   is
admissible, it may be adduced in any form in  which  it  may  be  available,
whether by production of a copy, duplicate copy of a copy, by oral  evidence
of the  contents  or  in  another  form.  The  secondary  evidence  must  be
authenticated by foundational evidence that the alleged copy is  in  fact  a
true copy of the original. It should be emphasised that  the  exceptions  to
the rule requiring primary evidence are designed  to  provide  relief  in  a
case where a party is genuinely unable to produce the  original  through  no
fault of that party.”

24.   After considering the entire  facts  of  the  case  and  the  evidence
adduced by the appellant for the  purpose  of  admission  of  the  secondary
evidence, we are of the view that  all  efforts  have  been  taken  for  the
purpose of leading secondary evidence.  The trial  court  has  noticed  that
the photocopy of the Exhibit DW-2/B came from the custody of DEO Ambala  and
the witness, who brought the record, has been examined as witness.  In  that
view of the matter, there is compliance of the provisions of Section  65  of
the Evidence Act.  Merely because the signatures in some  of  the  documents
were not legible  and  visible  that  cannot  be  a  ground  to  reject  the
secondary evidence.  In our view, the trial court correctly appreciated  the
efforts taken  by  the  appellant  for  the  purpose  of  leading  secondary
evidence.

25.   For the reasons aforesaid, the  impugned  order  passed  by  the  High
Court cannot be sustained in law.  The appeal  is  accordingly  allowed  and
the order passed by the High Court is set aside.

26.   However, we make it clear that mere admission of  secondary  evidence,
does not amount to its proof.  The genuineness,  correctness  and  existence
of the document shall have to be established during the trial and the  trial
court shall record the reasons before relying on those secondary  evidences.




                                                              …………………………….J.
                                                                (M.Y. Eqbal)


                                                              …………………………….J.
                                                               (C. Nagappan)
New Delhi
November 06C, 2015

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