Civil Revision No.1778 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.1778 of 2011(O&M) Date of Decision: August 18, 2011 Om Parkash and others .....Petitioners v. Ram Gopal alias Paali Ram alias Doojpuri Maharaj and another .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.J.S.Thind, Advocate for the petitioners. Mr.B.R.Gupta, Advocate for respondent no.2. ..... RAM CHAND GUPTA, J. The petitioners have invoked supervisory jurisdiction of this court under Article 227 of the Constitution of India for setting aside order dated 28.2.2011, Annexure P4, passed by learned Civil Judge, (Senior Division), Fatehabad, vide which application filed by petitioners for granting them permission to prove sale deed No.2328 dated 11.11.1971 by way of secondary evidence, was 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 a suit for declaration was filed by present petitioners-plaintiffs to the effect that they are owners in possession in equal shares of the property in dispute and that the revenue entries showing respondent-defendant no.2 to be owner in possession of the same is illegal, incorrect, against facts, null Civil Revision No.1778 of 2011(O&M) -2- and void and for further declaration that the sale deed bearing No.16 dated 3.4.2008 executed by respondent -defendant no.1 in favour of respondent- defendant no.2 and subsequent mutation on the basis of said sale deed is also illegal, null, void and not binding on their rights with further relief of injunction restraining respondent-defendant no.2 from further alienating and transferring the land in dispute to any other person. Plea was taken that father of present petitioners-plaintiffs had purchased a vacant plot measuring 19 marlas, as detailed in the heading of the plaint from defendant no.1 for a sale consideration of `400/- vide registered sale deed No.2328 dated 11.11.1971, registered in the office of Joint Sub Registrar, Fatehabad, and after purchasing the said plot, father of petitioners-plaintiffs had also constructed a house thereon and that earlier petitioners-plaintiffs used to reside with their father in the suit property and after his death on 11.5.2005, they became owners in possession of the same. Suit was contested by respondents-defendants. Issues were framed. Evidence was adduced by both the parties when the present application was filed by petitioners-plaintiffs for permission to adduce secondary evidence of sale deed No.2328 dated 11.11.1971, executed in favour of father of present petitioners-plaintiffs, which was declined by learned trial Court. It has been contended by learned counsel for the petitioners- plaintiffs that certified copy of the sale deed obtained from the office of Sub Registrar, Ex.P1, has already been placed on record. Further contends that the original sale deed was in possession of father of present petitioners- plaintiffs and, however, after his death, the same could not be located by present petitioners-plaintiffs and hence, the same has been lost. It has also Civil Revision No.1778 of 2011(O&M) -3- been contended that inadvertently counsel for the petitioners-plaintiffs did not file application for permission to lead secondary evidence at appropriate stage of the suit and only on that ground the application was dismissed by learned trial Court. It is also contended that petitioners have already led their evidence and that in case permission to adduce secondary evidence is allowed, petitioners are not to adduce any other evidence. On the other hand, it has been contended by learned counsel for the respondents-defendants that though objection was taken by respondents- defendants when the evidence was being adduced by petitioners-plaintiffs that Ex.P1 is not admissible in evidence as original sale deed had not been produced and, however, despite that no application for permission to adduce secondary evidence was filed. It is further contended that case is sought to be reopened after evidence was adduced by both the parties and hence application cannot be allowed. Case of present petitioners-plaintiffs is based on sale deed No.2328, dated 11.11.1971, which was allegedly executed by respondent- defendant no.1 in favour of father of present petitioners-plaintiffs. The sale deed is a registered document. Certified copy of the same has already been obtained by petitioners-plaintiffs from the office of Sub Registrar and the same has been placed on record as Ex.P1. It has been contended in the application that the original was in possession of the father of present petitioners-plaintiffs and, however, after death of their father, they could not locate the same. The present suit was filed after death of father of present petitioners-plaintiffs. Hence, petitioners-plaintiffs have been able to explain the whereabouts of original sale deed and have been able to explain that the original has been lost and is no more in their possession and hence, they Civil Revision No.1778 of 2011(O&M) -4- have laid down the foundation for leading the secondary evidence. As per Section 61 of the Indian Evidence Act, 1872 (hereinafter to be referred as the `Act') contents of a document may be proved either by primary or by secondary evidence. Secondary evidence has been explained in Section 63 of the Act, which reads as under:- “63.Secondary Evidence.- 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 insure 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 document given by some person who has himself seen it.” Section 65 of the Act provides that secondary evidence can be given in certain circumstances which reads as under:- “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 Civil Revision No.1778 of 2011(O&M) -5- 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 a 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 India to be given in evidence; (g) when the originals consists of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is 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 Civil Revision No.1778 of 2011(O&M) -6- written admission is admissible. In case (e ) or (f), a certified copy of the document, but no other kind of secondary evidence, is 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.” In this case original sale deed has not been filed. However as per case of petitioners-plaintiffs, the original has been lost and the same was not traceable, after the death of their father, hence, sufficient explanation has come on the record for not filing the original document. If the original document has been lost, secondary evidence of the contents of the document is admissible in evidence. Certified copy of the registered sale deed is admissible in evidence under Section 65(f) of the Act. Certified copy of a registered document issued by Sub Registrar under Section 57(5) of the Registration Act is also admissible for the purpose of proving the contents of the original document. Section 57(5) of the Registration Act reads as under:- “57(5) All copies given under this Section shall be signed and sealed by the registering officer, and shall be admissible for the purpose of proving the contents of the original document.” Hence, certified copy of original sale deed issued by Joint Sub Registrar under Section 57(5) of the Registration Act is admissible for the purpose of proving the contents of original document and could be received as secondary evidence of a original document under Section 65 of the Act. On this point, reliance is placed upon Nani Bai v. Gita Bai Civil Revision No.1778 of 2011(O&M) -7- Kom Rama Gunge, AIR 1958 SC 706, wherein it was held that in the absence of a registered sale deed for any reason, certified copy could be filed as secondary evidence. In Kalyan Singh v. Smt.Chhoti and others, AIR 1990(1) SC 306, Hon'ble Apex Court held that a certified copy of a registered sale deed could be produced as secondary evidence in the absence of the original sale- deed. It was also held that correctness of the certified copy referred to in Clause (1) of Section 63 of the Evidence Act is presumed under Section 79 of the said Act. In this case, the application has been declined by learned trial Court merely on the ground that the same was filed at a later stage, after evidence of both the parties was adduced and the case is sought to be reopened. However, it has been stated by learned counsel for the petitioners-plaintiffs that though petitioners-plaintiffs informed their counsel that the original sale deed has been lost and, however, application was not filed at appropriate stage by the counsel. The counsel was also changed by petitioners-plaintiffs. Hence, there is force in the argument of learned counsel for the petitioners-plaintiffs that due to negligence on the part of counsel for the petitioners-plaintiffs, they cannot be made to suffer. Moreover, it has been stated by learned counsel for the petitioners-plaintiffs that no other evidence is to be adduced by petitioners-plaintiffs if the application is allowed and the evidence, which has already come on the record be read to prove the case of the petitioners-plaintiffs. Hence, it cannot be said that the case is sought to be reopened by petitioners-plaintiffs by filing this application. Rather, the other party can be compensated by way of cost. Civil Revision No.1778 of 2011(O&M) -8- In the light of the aforesaid discussion, this Court is of the view that learned trial Court has committed manifest error in holding that the certified copy of a original sale deed cannot be taken as a secondary evidence, after both the parties led evidence. Certified copy of a registered sale deed is admissible piece of evidence. Hence, the present revision petition is accepted. Impugned order passed by learned trial Court is set aside. As a consequence thereof, application filed by petitioners-plaintiffs for permission to lead secondary evidence of sale deed No.2328 dated 11.11.1971 is allowed subject to payment of `5,000/- as cost, which shall be a condition precedent. 18.8.2011 (Ram Chand Gupta) meenu Judge Note: Whether to be referred to Reporter? Yes/No.