Civil Revision No.2906 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.2906 of 2011(O&M) Date of Decision: May 5, 2011 M/s Panna Lal Mahajan and another .....Petitioners v. State Bank of India and another .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Rishu Mahajan, Advocate for the petitioners. ..... RAM CHAND GUPTA, J.(Oral) C.M.No.11572-CII orf 2011 Application is allowed subject to all just exceptions. Civil Revision No.2906 of 2011 The present revision petition has been filed under Article 227 of the Constitution of India for setting aside order dated 5.3.2011 passed by learned Additional Civil Judge, Senior Division, Amritsar, vide which application filed by the petitioners-defendants for seeking permission to lead secondary evidence has been dismissed. I have heard learned counsel for the petitioners and have gone through the whole record carefully including the impugned order passed by learned trial Court. Facts relevant for the decision of present revision petition are that respondent-plaintiff had filed a suit for recovery of `9,39,666.31 against present petitioners-defendants on account of principal and interest amount on the basis of bills of exchange drawn by defendant no.3 and accepted by defendant-petitioner no.2 in his capacity as proprietor of defendant-petitioner no.1. Suit was contested by petitioner-defendant denying having been received bills stated to have been drawn by defendant no.3. Issues were framed. Evidence of respondent-plaintiff was concluded. Civil Revision No.2906 of 2011(O&M) -2- Part evidence of petitioner-defendant was also recorded, when the present application, Annexure P3, was filed by him under Section 65 of the Indian Evidence Act (for short `the Act') for permission to lead secondary evidence to prove balance-sheets allegedly submitted by him with the Income Tax Department while filing income tax returns for assessment years 1996-97 to 2006-07 on the plea that the originals are not traceable as an official from the Income Tax Department was examined by petitioner-defendant, who appeared as DW3 and deposed that alleged record for assessment years 1996-97 to 2006-07 was not in his custody and that the same was not available in the record. Application was opposed by respondent-plaintiff. The same was dismissed by learned trial Court by observing as under:- “4.Where the record of assessment of the defendant was not traceable, copies of which if any were not placed on file, it is not clear as to how that the record of assessment is to be proved by adducing secondary evidence in this regard and where existence of same was stayed by the summoned witness but the same not being traceable and there being no ground to ascertain as to which record was submitted for the purpose of assessment, application under consideration is ordered to be dismissed.” It has been contended by learned counsel for the petitioner- defendant that prima facie the loss of balance-sheets submitted to the Income Tax Authorities by petitioner-defendant has been proved and hence, he is having right to lead secondary evidence of the same by filing photostat copies. He has also placed reliance upon Ashok Kumar Sachdeva v. Harish Malik, 2008(3) Civil Court Cases 397 (P&H) and P.K.Gupta v. Varinder Sharma, 2002(3) RCR (Civil) 185. Law has been settled by Hon'ble Apex Court in Smt.J.Yashoda v. Smt.K.Shobha Rani 2007(2) RCR (Civil) 840: 2007 AIR (SC) 1721: 2007(5) SCR 367 that photostat copies of original cannot be received as secondary evidence in terms of Section 63 of the Act. Relevant paragraphs of the same read as under:- “3. Learned Single Judge held that the documents which were sought to be received and marked as secondary evidence are photo copies. It was noted that it may be a fact that the Civil Revision No.2906 of 2011(O&M) -3- original of the documents are not available with the parties but at the same time the requirement of Section 63 of the Indian Evidence Act, 1872 (in short the 'Act') is that a document can be received as an evidence under the head of secondary evidence only when the copies made from or compared with the original are certified copies or such other documents as enumerated in the above section. The High Court found the photo copies can not be received as secondary evidence in terms of Section 63 of the Act and they ought not to have been received as secondary evidence. Since the documents in question were admittedly photo copies, there was no possibility of the documents being compared with the originals. Accordingly the Civil Revision was allowed. 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. 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 Civil Revision No.2906 of 2011(O&M) -4- the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the Section. In Ashok Dulichand v. Madahavlal Dube and Another [1975(4) SCC 664], it was inter alia held as follows: `After hearing the learned counsel for the parties, we are of the opinion that the order of the High Court in this respect calls for no interference. According to clause (a) of Section 65 of Indian Evidence Act, Secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in 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 of any person legally bound to produce it, and when, after the notice mentioned in Section 66 such person does not produce it. Clauses (b) to (g) of Section 65 specify some other contingencies wherein secondary evidence relating to a document may be given, but we are not concerned with those clauses as it is the common case of the parties that the present case is not covered by those clauses. In order to bring his case within the purview of clause (a) of Section 65, the appellant filed applications on July 4, 1973, before respondent No. 1 was examined as a witness, praying that the said respondent be ordered to produce the original manuscript of which, according to the appellant, he had filed Photostat copy. Prayer was also made by the appellant that in case respondent no. 1 denied that the said manuscript had been written by him, the photostat copy might be got examined from a handwriting expert. The appellant also filed affidavit in support of his applications. It was however, nowhere stated in the affidavit that the original document of which the Photostat copy had been filed by the appellant was in the possession of Respondent No. 1. There was also no other material on the record to indicate the original document was in the possession of Civil Revision No.2906 of 2011(O&M) -5- respondent no.1. The appellant further failed to explain as to what were the circumstances under which the Photostat copy was prepared and who was in possession of the original document at the time its photograph was taken. Respondent No. 1 in his affidavit denied being in possession appeared to the High Court to be not above suspicion. In view of all the circumstances, the High Court came to the conclusion that no foundation had been laid by the appellant for leading secondary evidence in the shape of the Photostat copy. We find no infirmity in the above order of the High Court as might justify interference by this Court." It has also been observed by this Court in Gopal Singh v. Shish Pal and others, 2006(2) RCR (Civil) 79: 2006(2) PLR 393: 2006(2) CivCC 719 that photocopy of a document produced in Court is not admissible in as secondary evidence, as the plaintiff has first to prove the existence, execution and loss of original document. The same view has also been taken by this Court in Pawan Chawla v. M/s Amrit Handloom House and others, 2009(5) RCR (Civil) 700. In the present case, view taken by learned trial Court is in consonance with judgment of Hon'ble Apex Court in Smt.J.Yashoda's case (supra). Each case is to be decided on its own peculiar facts. In the present case, petitioner-defendant has prima facie failed to prove that any such income tax returns was filed by him, as he has not filed any receipt regarding the same. The balance-sheets, which he wants to prove are prepared from the account-books, which are of his possession. Hence, when best evidence, i.e., original account books, is available with petitioner-defendant, it cannot be said that he is having any right to prove photostat copies of balance-sheets of his firm by way of secondary evidence. So far as judgments, upon which reliance has been placed upon by learned counsel for the petitioner-defendant is concerned, the same are based on different facts and are not applicable to the peculiar facts and circumstances of this case. Civil Revision No.2906 of 2011(O&M) -6- In view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned trial Court in passing the impugned order or that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. Moreover, law has been well settled by Hon'ble Apex Court in Surya Dev Rai v. Ram Chander Rai and others 2004(1) RCR (Civil) 147 that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction by this Court. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and that a grave injustice or gross failure of justice has occasioned thereby. Hence, the present revision petition is, hereby, dismissed being devoid of any merit. 4.5.2011 (Ram Chand Gupta) meenu Judge