Hemkant Jha v. Ganga Prasad Sah & Ors.

no.1 was the plaintiff of Title Suit No. 135 of 1991. In course of 2 proceeding in the said suit, he filed photo copies of the Map and settlement list of erstwhile Darbhanga Estate with a prayer to call for the original documents from Darbhanga Raj as his case rested on those documents. Learned trial Court allowed the prayer and called for the original documents from Darbhanga Raj. However, Darbhanga Raj office informed the Court that the record room was sealed and as such required documents could not be sent to the learned trial Court. Respondent No.1/plaintiff thereafter, filed an application in the Court below praying for marking of the photo copies of the documents as exhibits to be proved by him as secondary evidence in the situation of non-availability of original documents. The learned trial Court, finally, dismissed the suit. The two documents were not exhibited in course of trial. Aggrieved by the judgment of the learned trial Court, respondent no.1 preferred an appeal vide Title Appeal No. 4 of 2001 before the learned District Judge, Supaul. In the said appeal he filed a definite application, seeking marking of photo copies of the documents filed by him as well as by defendants/respondents as exhibits. The claim was, however, resisted by the petitioner by way of rejoinder before the appellate Court. Learned appellate Court by impugned order allowed the petition to exhibit the photo copies of the documents. 3 Learned counsel appearing for the petitioner assailing the impugned order submits that photo copies of the documents are not admissible in evidence and the Court below wrongly allowed such copies to be taken into evidence by marking them as exhibits by the impugned order. This is to be noted here that this is admitted case of the parties that the petitioner does not have the originals of the photo copies which he wanted to be exhibited before the first appellate Court. Learned counsel appearing on behalf of petitioner has placed reliance upon a judgment of the Supreme Court reported in AIR 1994 SC 591 ( Government of A.P. Vs. Karri China Venkata Reddy) to contend that photo copies of the documents, in the facts and circumstances of the case, should not have been taken into admission as additional documents by the appellate Court. He submits, with reference to the said judgment, that photo copies of the documents are not admissible in the eye of law and the learned appellate Court committed an error while allowing such documents to be exhibited. Reliance has also been placed upon another judgment of Supreme Court reported in 2010 (3) PLJR (SC) 1 ( Sidhartha Vashisht Vs. State of Bihar) with special reference to paragraph 67A. It has been submitted that in 4 the absence of original documents before the Court for scrutiny, no reliance can be placed on photo copy without leading proper secondary evidence in this regard. Learned counsel appearing on behalf of respondents, on the other hand, has submitted that the appellate Court, in the facts and circumstance of the case, exercised its discretion, such discretion would need no interference by this Court in exercise of power under Article 227 of the Constitution of India. He submits that the photo copies were required to be taken into evidence as the original documents were available in Darbhanga Raj office and such documents could not be produced as the concerned office was sealed. He submits that for the ends of justice, this Court should not interfere with the impugned order. In support of his plea, learned counsel for the respondent no.1 has placed reliance on a Supreme Court judgment reported in AIR 2010 SCW 5200 ( Shalimar Chemicals Works Ltd. Vs. Surendra Oil & Dal). With reference to the said judgment, he has contended that it was not impermissible for the Court below to have accepted the zeroxed copy of the documents. From the facts as above mentioned and submissions noted above, It is evident that the original documents, photo copies of which were being sought to be exhibited, are not 5 available. The parties did not have the opportunity to scrutinize the correctness of the photo copies. In my opinion, in view of the judgment of Supreme Court in case of (Government of A.P. Vs. Karri Chinna Venkata Reddy) ( supra) the photo copies of the documents could be admitted as evidence only after examining the original records and in absence of original records such documents could not have been ordered to be exhibited. In case of Sidhartha Vashisht (supra), reliance upon which has been placed on behalf of the petitioner, this Court in paragraph 67A, dealing with Section 293 of the Code of Criminal Procedure held that unless original documents are placed for scrutiny of the Court, no reliance can be placed on the photo copy without leading proper secondary evidence in this regard. A portion of paragraph 67A of the Supreme Court judgment in case of Sidhartha Vashisht Vs. State ( supra) is being quoted hereinbelow:- “67A …… In other words, in terms of the relevant provisions of the Indian Evidence Act unless the original document is placed for the scrutiny of the Court, no reliance can be placed on the photocopy without leading proper secondary evidence in this regard. In any case, both Section 293 and Section 294 of the Code which dispense with formal proof of documents under certain circumstances make it abundantly clear that the documents sought to be relied upon must be the originals.” The reliance placed by the learned counsel for 6 respondent no.1 on the Supreme Court judgment reported in Shalimar Chemicals Works Ltd. ( supra), I am of the view that the facts of that case were different. In that case the photo copies of the documents were marked as exhibits by the trial Court. The trial Court, however, did not consider those documents in the judgment. The original documents were all along in possession of the plaintiff and at no stage the trial Court had refused to admit the Photostat copies of the original in evidence. The Supreme Court in paragraph 12 of the said judgment held that the trial Court should not have marked as exhibits the Xerox copies of the certificates of registration of trade mark in face of the objection raised by the defendants and he should have declined to take them on evidence and should have left the plaintiff to support his case by whatever means it proposed rather than leaving the issue of admissibility of those copies open and hanging, by marking them as exhibits. In the present case, admittedly, those documents were not exhibited at the stage of trial. I am, therefore, of the opinion that the case of Shalimar Chemicals Works Ltd. ( supra) is distinguishable. Further the Supreme Court in that case held that in view of the objection raised by the defendant in that case the Courts should have declined to mark the zerox copy of the documents as exhibits. 7 In view of the above, I am of the opinion that the impugned order by which the Court below allowed the application for exhibiting photo copies of the Map and settlement list of erstwhile Darbhanga Estate as exhibits cannot be sustained. The impugned order dated 4.1.2010 passed by learned ADJ, FTC- No.III, Supaul in Title Appeal No. 4 of 2001 is accordingly, quashed. This application is thus, allowed. (Chakradhari Sharan Singh, J) Arun Kumar/-