Civil Revision No. 5442 of 2007 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 5442 of 2007 (O&M) Date of decision: 11.12.2008 Kirpa Ram @ Kishana ....Petitioner Versus Ishwar Singh ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. J.B. Sharma, Advocate, for the petitioner. Mr. Lalit Goel, Advocate, for the respondent. ***** VINOD K. SHARMA, J (ORAL) The petitioner has challenged the order dated 12.9.2007 passed by the learned Additional Civil Judge (Senior Division), Ganaur, declining an application moved by the petitioner for leading additional evidence to prove on record the photocopy of the 'receipt'. The respondent-plaintiff filed a suit for possession by way of specific performance of agreement to sell dated 10.1.2001. It was claimed in the suit that the defendant-petitioner entered into an agreement to sell agricultural land measuring 16 kanals 15 marlas situated at village Bhora Rasulpur, Tehsil Ganaur, District Sonepat with the plaintiff and one Randhir son of Ram Sarup resident of village Karhans, Tehsil Smalkha for a consideration of Rs.1,82,000/- per acre. A sum of Rs.80,000/- was said to have been paid as earnest money. In the suit filed, it was claimed that Randhir relinquished his share Civil Revision No. 5442 of 2007 (O&M) -2- in favour of plaintiff/respondent. The suit was contested and it was claimed that Randhir is a financier and, in fact, there was loan transaction between the parties and the documents executed to secure the loan have been used as agreement to sell. It was the case of the petitioner/defendant that he got loan from the plaintiff against agricultural land as security and that the petitioner paid the loan amount by way of instalments. It was also pleaded that receipt used to be issued against instalments. It is further the case of the petitioner that the respondent asked the petitioner to hand over all the receipts, to tally account with a promise to return the same after reconciliation. But the receipts were not returned. The petitioner further pleaded that at time of return of receipts for reconciliation, he got photocopy prepared for his record. The petitioner moved an application for directing the plaintiff- respondent to produce on record the original receipt. The respondent denied the possession of any receipt. Consequently, an application was moved for leading secondary evidence to prove the photocopy of the receipt. The application was contested which stands rejected by the learned trial Court by impugned order. The learned trial Court observed that it was for the petitioner to establish that receipt dated 14.11.2000 was exeucted and signed by the respondent. The learned trial Court also observed that the receipt was dated 14.11.2000 whereas the controversy was with regard to agreement to sell dated 10.1.2001. The learned Court observed that the receipt being photocopy, cannot be compared by hand writing expert. The learned Court Civil Revision No. 5442 of 2007 (O&M) -3- further observed that the possibility of document being prepared by using technology could not be ruled out and, thus rejected the application for secondary evidence. The learned counsel for the petitioner contends that the impugned order cannot be sustained as the petitioner had proved the existence of agreement on the specific allegation that the reciept towards payment of instalment has been handed over to the respondent-plaintiff for re- conciliation of the account. The learned counsel for the petitioner contends that in the present case, the case set up by the plaintiff shows that Randhir was also one of the party to agreement, who is admittedly a financier. It is also the contention of the learned counsel for the petitioner that photocopy of the receipt was filed with the written statement. The learned counsel for the petitioner submits that the learned trial Court was in error in rejecting the application by holding that the authenticity of document cannot be proved as the photocopy could not be compared by the hand writing expert. The contention of learned counsel is that the permission to lead secondary evidence does not mean that the document stands proved in evidence nor it is a finding of existence. It only permits the Court to hold an inquiry regarding the proof of document which can only be proved in evidence after it is proved on record. In support of this contention, learned counsel for the petitioner placed reliance on the judgment of this Court in Ashok Kumar Sachdeva Vs. Harish Malik 2007(4), RCR (Civil) 311, wherein this Court has been pleased to lay down as under: - Civil Revision No. 5442 of 2007 (O&M) -4- "After hearing learned counsel for the parties, I am of the view that to prove a document by way of primary or secondary evidence is a rule of evidence. Whether the party seeking leave of the Court to lead secondary evidence ultimately succeeds in proving the document or not is a question of fact and depends upon evidence. Petitioner has pleaded in the application the loss of original document. Under what circumstances document was lost is a question of fact and evidence. It is settled rule of pleadings that a party must disclose material facts and need not plead evidence. In the instant case material fact is loss of document and circumstances leading to loss is a question of evidence. This question can only be decided after providing opportunity to the party concerned to lead secondary evidence. To grant leave to lead secondary evidence does not mean the document is admitted in evidence nor it is a finding of the existence of any of the conditions indicated in Section 65 of the Evidence Act. It only amounts to holding an enquiry regarding existence of document and its loss under some circumstances. Failure or succeess to prove the existence of document or its loss cannot be predetermined that too without providing opportunity. Whether it is proved or not, is to be seen after the leave is gratned and the material/evidence produced, is evaluated. The question Civil Revision No. 5442 of 2007 (O&M) -5- raised by learned counsel appearing for the respondent is premature at this stage." The reliance was also placed on the judgment of this Court in Kuldeep Kaur Vs. Chattar Singh and another 2008(3) RCR (Civil) 463 wherein this Court has been pleased to lay down as under: - "Mr. Sudeep Mahajan, however, would seriously contest the contention raised by counsel for the petitioner and would say that sufficient basis have not been provided by the petitioner to entitle him to lead the secondary evidence in regard to the documents. He has made reference to Ashok Dulichand v. Madahavlal Dube and another, (1975)4 Supreme Court Cases 664 and J. Yashoda v. Smt. K. Shobha Rani, 2007(2) RCR (Civil) 840: 2007(1) RCR (Rent)466: 2007(2) RAJ 607: 2007(3) Civil Court Cases 195 (SC) to say that photostat copies of the documents were not allowed as secondary evidence in these cases on the ground that the petitioners therein could not show how the photostat copies were got made, when the original was not in the possession of the party. That requirement may not apply to the facts of the present case. In regard to one document, certified copy of the registered will has been placed on record. There is no objection made to production of this document by the counsel for the respondents as secondary evidence. The second will also concededly was in the possession of the Civil Revision No. 5442 of 2007 (O&M) -6- petitioner and as such, he could have had the occasion to make photocopy thereof. Accordingly, the observations in the cases of Ashok Dulichand and J. Yashoda (supra) would not apply to the facts of the present case. The petitioner has laid sufficient basis to show existence of the document and has made an averment that the same is lost. He accordingly has made out a case for leading secondary evidence in regard to the second will also which has been declined. It will be futile to mention that only permission to lead secondary evidence has been granted and it will always be open for the parties to argue about the value to be attached to this piece of evidence, which is taken on record as secondary evidence. The impugned order to an extent declining the prayer of the petitioner for leading secondary evidence of the will of Parkash Kaur is set aside. The petitioner would be permitted to lead secondary evidence in regard to the said will also." Reliance was also placed on the judgment of this Court in Meena Sharma Vs. Rama Sharma and others 2007(4) RCR (Civil), 413, wherein this Court has been pleased to lay down as under: - 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 Civil Revision No. 5442 of 2007 (O&M) -7- 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 be 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 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 Civil Revision No. 5442 of 2007 (O&M) -8- 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: 3. According to the petitioner, Gokal was his maternal uncle. He claims the property of Gokal on the basis of the Will allegedly executed by the latter in his favour and registered on November 25, 1938. It is understood that such original Will, if any, ought to have been in possession of the petitioner. The plea of the petitioner is that the same has been lost. The petitioner Civil Revision No. 5442 of 2007 (O&M) -9- thus, made out a case for leading secondary evidence about the Will under Section 65(c) of the Indian Evidence Act. The learned trial Judge misdirected himself by recording a finding that the original Will had not been executed and that it had not been lost, the stage when the petitioner sought permission to lead secondary evidence. The occasion for recording a finding on this point for or against the petitioiner would arise after the parties have concluded evidence. The impugned order of the trial Court, therefore, cannot be sustained." The learned counsel for the petitioner also contends that the judgment of Hon'ble Supreme Court in J. Yashoda Vs. K. Shobha Rani (2007)5, Supreme Court Cases 730, will not be applicable as the petitioner in the present case has explained the circumstances under which the photocopy was prepared. Mr. Lalit Goel, learned counsel appearing on behalf of the respondent, however, supported the order primarily on the plea that in the present case, the petitioner has failed to prove the existence of document. It is also the contention of the learned counsel for the respondent that the receipt sought to be produced would have no relevance to matter in dispute as the receipt is of date much prior to the agreement to sell. However, on consideration of matter, I find force in the contention raised by the learned counsel for the petitioner. In the present case, the petitioner has prima facie shown the existence and also the loss of document. The receipt was placed on record with the written statement. Civil Revision No. 5442 of 2007 (O&M) -10- The very fact that Randhir is a financier and is one of the party to the agreement, as is clear from the averments in plaint. It is a case where secondary evidence ought to have been allowed. The Court in order to decide the application for secondary evidence is only to see prima facie the existence and loss is proved. It is for the party, which leads secondary evidence to prove the due execution of the said document by leading cogent evidence. The plea of the respondent that the document was totally irrelevant, cannot be accepted as the plea of the petitioner is that there was loan transaction between the parties and, therefore, receipt would be necessary piece of evidence to prove the defence of the petitioner to the suit for specific performance. The contentions raised by the learned counsel for the petitioner, therefore, deserves to be accepted. For the reasons stated, revision is allowed, impugned order is set aside and the application moved by the petitioner for leading secondary evidence to prove the receipt stands allowed but with no order as to costs. (Vinod K. Sharma) Judge 11.12.2008 R.S.