Bir Singh & Ors. v. KANWALJIT SINGH AHLUWALIA, J. (ORAL)

petitioners was rejected by the trial Court vide impugned order dated 13th March, 2010 (Annexure P-4) on the ground that it was improbable that so many sale deeds may have been lost. For this reasoning, not only the application of the petitioners was rejected but a cost of Rs.500/- was also imposed upon them. Counsel for the petitioners submits that it is necessary to prove the sale deeds on record as they are germane to the controversy involved. Order dated 24th May, 2010 reveals that Mr.Rajinder Goyal, Advocate had caused appearance for respondents No.2 and 3, and respondent No.1 had expired. Today nobody is present on behalf of the respondents. Civil Revision No.3030 of 2010 2 The journey of the Court is to find the truth. Counsel for the petitioners has relied upon ‘Smt. J. Yashoda v. Smt. Shobha Rani’ 2007 (2) RCR (Civil) 840, the relevant portion of which reads as under: “7. 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 contents.

8. Essentially, secondary evidence is an evidence which may be given in the absence of that better evidence which law requires 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.

9. 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. Under Section 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 evidence 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 Civil Revision No.3030 of 2010 3 bring it within one or other of the cases provided for in the Section.” In ‘Meena Sharma v. Rama Sharma and others’ 2007 (4) RCR (Civil) 413, it was held that the Court has to formulate an opinion about the loss of document and not with regard to its existence, as the same is required to be proved by leading secondary evidence. The following portion of the judgment rendered in Meena Sharma’s case (supra) is required to be noticed: “18. In Phipson on Evidence, 9th Edition at page 544 occurs the following passage : "The rule requiring production of the attesting witnesses provided their names are known holds, although the document is lost or destroyed..... where both the documents is lost and the attesting witness is dead, proof of handwriting by someone who remembers having seen the document, although admissible is not indispensable". Again at page 570 it is pointed out : "The party tendering secondary evidence must prove the existence and execution of the document directly if possible, or presumptively where not". Again in Taylor on Evidence, 11th Edition. Vol. 1 at page 326 it is pointed out : "In all cases before such evidence (meaning secondary evidence) will admissible, it must be shown that the original instrument was duly executed and was otherwise genuine. If the instrument were of such a nature as to require attestation the attesting witness must, if known, be called, or in the event of his death his handwriting must be proved precisely in the same manner as if the Civil Revision No.3030 of 2010 4 deed itself has been produced, though, if it cannot be discovered who the attesting witness was this strictness of proof will, from necessity, be waived". Thus, it has to be held that the existence of the document is required to be proved after the parties lead evidence and for purpose of allowing secondary evidence the court has to only form opinion about the loss of the document and not with regard to its existence as the same is required to be proved by leading secondary evidence to prove the document. This view of mine also finds support from the judgment of this court in the case of Amar Chand v. Smt. Kaushalya and others, 1985(2) All India Land Laws Reporter 46 wherein it has been held as under :- "2. Section 65 of the Indian Evidence Act deals with the cases in which secondary evidence relating to documents can be given. The relevant part of this section reads : "Secondary evidence may be given (as to) the existence, condition or contents of a document in the following cases : (a) - - - - - (b) - - - - - (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” Learned counsel has made following averment in the present writ petition: “In the present case the petitioner intended to place on record the certified copies obtained from the office of registrar, Kaithal. Registrar has stamped the sale deeds to be the attested copies of the original. Hence, they are fit to be admitted as secondary evidence.” Civil Revision No.3030 of 2010 5 Therefore, existence of the document is not in doubt. It has been stated in evidence that the original sale deeds have been lost. If the attested copies of the original sale deeds by way of secondary evidence are brought on record, it will fortify the submission of the concerned party that the sale deeds bear a date much prior to the filing of the suit. In ‘Mohinder Singh v. Krishan Lal and others’ 2009(2) RCR (Civil) 642, it was held that certified copy of a registered sale deed is a secondary piece of evidence and the same is admissible in evidence in order to prove the contents of the documents under Section 65 Sub- clause (e) and (f) of the Evidence Act. In view of the observations made, present revision petition is accepted and the petitioners are permitted to produce the certified copies of the sale deeds mentioned in their application (Annexure P-2), by way of secondary evidence. June 29, 2010 [KANWALJIT SINGH AHLUWALIA] JUDGE