Civil Revision No. 32 of 2010 1 In the High Court of Punjab and Haryana, at Chandigarh. Civil Revision No. 32 of 2010 Date of Decision: 19.7.2010 Master Bhanu Pratap Singh (Minor) …Petitioner Versus Sukh Dev Bhatia …Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. S.N. Gaur, Advocate for the petitioner. Mr. Sanjeev Sharma, Advocate for the respondent. Kanwaljit Singh Ahluwalia, J. The petitioner/plaintiff had filed a suit for specific performance of agreement dated 28.7.1997 whereby Smt. Ram Murti had agreed to sell 5 marlas out of 11 marlas of land with one shop measuring 20' x 10' therein, in favour of the plaintiff. A decree for permanent injunction was also sought restraining the respondent/defendant from alienating the suit property. It has been pleaded that respondent/defendant had succeeded to the estate of Smt. Ram Murti Devi. To fortify this submission, an agreement to sell and receipt of earnest money, both dated 28.7.1997, whereby payment of Rs.2,15,000/- has been made, are annexed as Annexures P1 and P2, respectively, with the present petition. During the pendency of suit, the petitioner/plaintiff filed an Civil Revision No. 32 of 2010 2 application dated 30.1.2006 (Annexure P6) with a prayer that he be permitted to prove the agreement to sell dated 28.7.1997 (Annexure P1) and receipt (Annexure P2), respectively, by way of secondary evidence. A categoric averment, to the following effect, was made in the application (Annexure P6):- “...3 That the carbon copy of the agreement to sell as well as the original receipts of payments were handed over by the applicant-plaintiff to the police for investigation on a complaint filed by him against the defendant, vis. Sukhdev Bhatia and his son Naveen Bhatia. The police had taken into possession all the afore-mentioned papers against paper receipt. However, the police officials, in connivance with the defendant have managed to hand over all the original papers to the defendant himself. The matter was brought to the notice of the police. Since no action was taken in the matter, the applicant was compelled to file a Criminal Misc. No. 51932 of 2003 before the Hon'ble High Court of Punjab and Haryana at Chandigarh for registration of a case against the guilty police officials as well as the defendant and his son. The said petition is pending disposal before the Hon'ble High Court”. It is a case of the petitioner/plaintiff that an agreement to sell (Annexure P1) and receipt (Annexure P2) were prepared, in duplicate and the same were taken into possession by Arjun Singh, Assistant Sub Civil Revision No. 32 of 2010 3 Inspector, of Police Station Sector 5, Panchkula, vide a separate memo dated 18.8.2000 (Annexure P3). It is explicitly clear that the document, duplicate copy of an agreement to sell dated 28.7.1997 and receipt at the back thereof, were taken into possession by Arjun Singh, Assistant Sub Inspector, during the course of investigation of a criminal case. Another memo to this effect, prepared by him, has been annexed with the present revision petition as Annexure P4. On 20.6.2003, the Station House Officer, Police Station, Sector 5, Panchklula, had submitted the following report:- “...Respected Sir, It is submitted that at the time of recording the untraced report in case FIR No. 379 dated 14.9.2000 under Sections 420, 465, 467, 471, 120-B IPC, Police Station Sector 5, Panchkula, the case file was perused. On the perusal it was found that on 15.2.2001 Sh. Arjun Singh ASI had taken into possession the following documents from the accused Hari Bhan Singh:- 1. Duplicate copy of Agreement to Sell- Photocopy (non-carbon) having signatures of Ram Murty, Naveen, Sukhdev, H.B. Singh, Tehsildar with other witnesses in original, Report of the back of 1st page (in original); 2. Receipt of A/c payee cheque issued in the name of Ram Murty and Naveen (14 Civil Revision No. 32 of 2010 4 original); 3. Receipt of instalment cash issued to Ram Murty of Rs.5,000/- P.M. (6 original); 4. Receipt of instalment cash issued to Sukhdev, Ram Murty in advance of Rs.25,000/- cash (2 original). Which were original and were taken into possession by the police. However, these documents are not available in the police file. Therefore, it is requested that ASI Arjun Singh may be summoned and he may be inquired about these documents. Sd/-SHO, P.S. Sector 5, Panchkula, Dt. 10.6.03 Forwarded Please. Sd/- Dy.S.P. Panchkula”. Learned counsel for the petitioner has argued that since the documents were taken into possession by the police, during the course of investigation and now the same are not available, the petitioner be permitted to prove the same by way of secondary evidence. The trial Judge observed that in the plaint, a reference has been made to a carbon copy of an agreement to sell and not to the original thereof. Therefore, the plaintiff has failed to prove the existence of the original documents and also the loss of the same. Thus, on these grounds, the application was dismissed vide order dated 21.12.2007 (Annexure P7). Subsequently, again, an application dated 19.2.2008 (Annexure P8) was filed and the same was dismissed vide order dated 29.3.2009 Civil Revision No. 32 of 2010 5 (Annexure P10). Hence, the present revision petition has been filed. I have heard learned counsel for the parties. Learned counsel for the petitioner has submitted that right from the beginning, an agreement to sell and a receipt, both dated 28.7.1997, containing original signatures of Smt. Ram Murti Devi, Naveen Bhatia and Sukhdev Bhatia and the attesting witnesses, were taken into possession by the police vide memo dated 18.8.2000 (Annexure P3). He further submitted that the documents were prepared, in duplicate. The following averments, made in the revision petition, are important to be noticed:- “...9. That because the documentary evidence of original agreement to sell dated 28.7.1997 (Annexure P1) and the receipt dated 28.7.1997 (Annexure P2) and the other original receipts for payment of sale price, were not in possession of petitioner and were illegally taken away by the police in connivance with the respondent and were destroyed as explained above”. The petitioner/plaintiff has sufficiently proved from the record that carbon copy of the agreement to sell and receipt of payment, containing original signatures of the parties and the attesting witnesses, were taken into possession by the police. It is also the case of plaintiff that agreement to sell was prepared, in duplicate. Thus, having reasonably explained the loss of document, the petitioner/plaintiff cannot be denied an opportunity to prove the same by leading secondary evidence. Civil Revision No. 32 of 2010 6 Learned counsel for the respondent/defendant has relied upon a judgment rendered in Kalyan Singh, London Trained Cutter, Johri Bazaar, Jaipur v. Smt. Chhoti and Others 1990 Civil Court Cases 590 (SC) to urge that the loss of original agreement to sell has not been explained. The judgment rendered in Kalyan Singh's case (supra) is not applicable on the facts of the present case. It is the case of the plaintiff that carbon copy of an agreement to sell, containing original signatures and original receipt were taken into possession by the police, who had lost the same. The report of the Station House Officer, Police Station, Sector 5, Panchukula, to this effect has been annexed with the present revision petition as Annexure P5. Further, a judgment rendered in Banarsi Dass v. Om Parkash and Others 2005(2) Punjab Law Reporter 358 has been pressed into service by learned counsel for the respondent. A perusal whereof reveals that the permission to lead secondary evidence was declined on the ground that no explanation has been tendered for not filing the original agreement. However, in the present revision petition, the petitioner has sufficiently explained the loss of documents. After hearing learned counsel for the parties, this Court is of the view that the present case is to be decided on the basis of the ratio of law laid down in Ashok Kumar Sachdeva v. Harish Malik 2007(4) Recent Civil Reports 311, wherein it has been observed as under:- “...3. Section 65 of the Evidence Act permits the secondary evidence under the circumstances enumerated therein, same is noticed hereunder:- “65. Cases in which secondary Civil Revision No. 32 of 2010 7 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 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 Civil Revision No. 32 of 2010 8 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 with 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 original 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”. 4. One of the circumstance under clause(c) is loss of the original document. The copy of the document is already on record. The petitioner Civil Revision No. 32 of 2010 9 specifically pleaded that the original document has been lost and other related factors are all questions which can only be established once the applicant is allowed to lead secondary evidence in respect to the document in question. Learned counsel appearing for the respondent has referred to Akkam Laxmi v. Thosha Bhoomaiah and another, 2003(1) RCR (Civil) 322: 2003(1) Civil Court Cases 452 (AP); Hira and another v. Smt. Gurbachan Kaur, 1988 (2) PLR 173; Banarsi Dass v. Om Parkash and Others, 2005(2) RCR(Civil) 72: 2005(2) PLR 358; Bhagwan Sarup v. Jagdish Kumar Jain, 2000(2) RCR (Civil) 246: 2000(1) PLR 858 (P&H). Learned counsel has particularly relied upon the judgment reported in Banarsi Dass v. Om Parkash and Others, 2005(2) PLR 358, wherein Co-ordinate Bench of this Court has observed that the applicant must first prove the loss of the document and to establish further as to why the photocopy was obtained if the duplicate of the document was not required to be maintained under any law. He has also referred to the other documents, as noted above, indicating that the secondary evidence can be led under the circumstances enumerated in Section 65 of the Evidence Act. There is no dispute Civil Revision No. 32 of 2010 10 with regard to the proposition as referred to in the above judgments that the secondary evidence is permissible only when essential ingredients under Section 65 of the Evidence Act are proved. The question that needs consideration is whether the loss is to be proved first and then only leave is to be granted for secondary evidence. The counsel appearing for the petitioner has referred to Raj Kumar v. Daljit Kumar Punj and Others, 1989 Civil Court Cases 10 (P&H); Indian Overseas Bank v. M/s Shayama & Co. and Others, 1993(2) RRR 44: 1993 Civil Court Cases 390 (P&H); Smt. Prem Lata v. Smt. Kamla Devi and others, 2006 (3) RCR (Civil) 227: 2006(3) PLR 150; Shangara Singh v. Jawala Singh, 1993(2) RRR 367: 1993(1) PLR 171; Raj Kumari v. Lal Chand 1994(1) Civil Court Cases 477 (P&H); Smt. Sobha Raam v. Ravi Kumar and Others, 1999(1) RCR (Civil) 98: 1998(3) Civil Court Cases 637 (P&H) and Som Parkash v. Prabhati Lal , 1991(2) Recent Revenue Report 399 (P&H), delivered by the Co- ordinate Benches of this Court wherein it is held/observed that loss is not required to be proved in absolute terms. 5. After hearing learned counsel for the Civil Revision No. 32 of 2010 11 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 success to prove the existence of document or its loss cannot be pre-determined that too without providing opportunity. Whether it is proved or not, is to be seen after the leave is Civil Revision No. 32 of 2010 12 granted and the material/evidence produced, is evaluated. The question raised by learned counsel appearing for the respondent is premature at this stage”. Therefore, for the reasons given in Ashok Kumar Sachdeva's case (supra) impugned order is not sustainable in the eyes of law and the same is set aside. The application, filed by the petitioner, to lead the secondary evidence in respect of agreement to sell and receipt, both dated 28.7.1997 (Annexures P1 and P2) is allowed. Hence, the present revision petition is accepted and it is ordered that after providing an opportunity to the petitioner to lead secondary evidence, the trial Court shall form its opinion regarding the existence of documents and the circumstances enumerated in Section 65 of the Indian Evidence Act, 1872 for leading secondary evidence. Thereafter, the Court will say as to whether the document has been proved in evidence or not. With the observations made above, the present revision petition is disposed of. (Kanwaljit Singh Ahluwalia) Judge July 19, 2010 “DK”