1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B. Civil Writ Petition No. 8937/2006 {Radhey Shyam Versus Ramdhan @ Dhanesh Kumar Thawaria & Another} Date of Order :: 21st August, 2008 PRESENT HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Mr. Shankar Lal Sharma for Mr. Suresh Pareek for the petitioner Mr. R.S. Mehta for the respondent no.1 BY THE COURT: Admit. Mr. Mehta appears for contesting plaintiff-respondent no.1. Respondent no.2 is only a proforma respondent, therefore, its service is dispensed with. 2. Heard learned counsel for the parties. 3. The plaintiff-respondent no. 1 filed a suit for recovery of amount alongwith interest against defendant-petitioner. During the pendency of the suit, when matter was fixed for evidence, the counsel for the defendant- petitioner made a prayer to mark exhibit on the certified copy of the certified copy of security bond as the original was not within the possession of the defendant-petitioner. The trial court rejected the prayer vide order dated 13th September, 2006, which is impugned 2 in this writ petition preferred on behalf of defendant. 4. The learned counsel for the defendant- petitioner contended that the document in question was a certified copy which was obtained by him from another suit, wherein certified copy was exhibited, therefore, it was a certified copy of the certified copy of the document, which should have been taken on record and exhibited in the case. The said document was not in his possession and trial court has wrongly recorded a finding that the original is in existence. In support of his contention, he referred Arunkumar Pritmalal and another Versus Ramanlal Shangubhai (AIR 1975 Gujarat page 73) and Gurgan Lal Versus Vijay Kumar & Others {2001 WLC (Raj.) UC page 576}. 5. The learned counsel for the respondents defended the impugned order and contended that impugned certified copy of security bond has been obtained from carbon copy and not from certified copy, therefore, the same is not admissible and trial court rightly rejected the prayer of the learned counsel for the petitioner in not taking the same on record. 6. In rejoinder, the learned counsel for 3 the petitioner contended that the plaintiff- respondent did not raise any objection in the trial court in their reply to the application to take the said document on record as that document is certified copy of the carbon copy. He also referred the impugned order passed by the trial court, wherein there is no reference that it was a certified copy of the carbon copy, whereas the trial court has recognized it as certified copy of the certified copy. 7. I have considered the submissions of learned counsel for the parties and examined the impugned order passed by the trial court. The Gujarat High Court in Arunkumar Pritmalal and another Versus Ramanlal Shagubhai's case (supra) held that a copy prepared from a certified copy which the defendant had produced in a former suit, was admissible in evidence. Para 9, 10 and 11 of the aforesaid judgment are reproduced as under: “9. In the present case, as observed above, the presumption arises that the sale deed executed by the predecessors-in-title of the plaintiff in favour of the husband of Bai Samrath is in possession of the defendants. It is not disputed that, the defendants were called upon to produce that sale deed. They have, however, not produced it on the ground that, it is not in their possession. This shows that the 4 request of the plaintiff for permitting him to produce the copy of the sale deed falls under Section 65(a) of the Indian Evidence Act. If it is held that the original sale deed has been destroyed or lost, then clause (c) of Section 65 would be applicable. This shows that the plaintiff's request for admitting the copy of the sale deed in evidence would fall both under clauses (a) and (c) of Section 65 or under either of them. Now, according to the above section “In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible”. The above provisions clearly show that the contents of the document in a case like the present one, can be proved not only by the secondary evidence of the kind specified in Section 63 of the Act but also by “any” secondary evidence as contemplated by the aforesaid provisions of Section 65. The relevant provisions of Section 65 seem to have been enacted in order to safeguard the interest of the person who is unable to produce either the original document or a secondary evidence of the type mentioned in Section 63 of the Act, in the circumstances mentioned in clauses (a), (c) and (d) of that section. Thus, in view of the above provision of Section 65 of the Indian Evidence Act, the copy of the sale deed produced by the plaintiff with his list Ex. 27 is admissible in evidence, and neither Section 63 nor clause (f) of Section 65 would come in the way of doing so. The learned advocate for the appellants is unable to controvert the above position. 10. If any authority is needed on the point, it is provided by the decision in the case of Bibi Aisha v. Bihar S.S. M. Avaqaf, AIR 1969 SC 253 in which it has been held. 5 “Under Section 65 (a) of the Evidence Act secondary evidence may be given of the existence or contents of a document 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 and when after the notice mentioned in Section 66, such person does not produce it. Where the case falls under Section 65(a) any secondary evidence of the contents of the document is admissible. In the present case the conditions of Section 65(a) were satisfied. The plain copy of the Waqf was therefore admissible. On behalf of the appellant it was argued that clause (f) of Section 65 was applicable and that as the certified copy of the deed dated August 20, 1827 was permitted by the Evidence Act to be given in evidence a certified copy alone was admissible in evidence. There is no substance in this contention. If the case falls under clause (a) any secondary evidence of the document is admissible, though the case may also fall under clause (f). Clause (a) is not controlled by clause (f).” According to their Lordships the position would be the same even if the provisions of clause (c) of Section 65 are attracted as would be evident from the following observations in that case: “In the case of A Collusion Between The “AVA”, (1879) ILR 5 Cal 568 a question arose as to whether secondary evidence could be given of the contents of a certificate granted by the Board of Trade. The loss of the document attracted clause (c) of Section 65 and the failure to produce it after notice attracted clause (a). Clause (f) of Section 65 was also applicable. Wilson J.. ruled that a certified copy need not be 6 produced and any secondary evidence was admissible. We agree with this decision. Wilson, J. said. “By Section 65 in cases under cls. (a) and (c) any secondary evidence is admissible; in cases under cls. (e) and (f) only a certified copy. The present case falls under clause (a) or (c) and also under (f). In such a case which rule applies? I think the words, “In cases (a), (c) and (d), any secondary evidence is admissible”, are too clear and too strong to be controlled by anything that follows, and that, therefore, in this case any secondary evidence might be received”.” 11. In view of the above clear authorities and of what is stated earlier on the point it becomes evident that, in cases (a), (c) and (d) of Section 65 of the Indian Evidence Act any secondary evidence is admissible irrespective of the provisions of Section 63 or clause (f) of Section 65 of the Act. The learned trial Judge does not seem to have considered the above provisions of Section 65 of the Act while coming to the conclusion that, the aforesaid copy of the sale deed is not admissible in evidence. In view of the reasons mentioned above, his finding to the above effect cannot be sustained.” 8. In Gurgan Lal's case (supra), this Court held that carbon copy of rent note prepared by mechanical process be admitted subject to objections. 9. Although the trial court has observed in the impugned order that original document is in existence, but as contended by learned 7 counsel for both the parties the original security bond is not in existence, therefore, the observation of the trial court in this regard does not appear to be correct. In these circumstances, I think it fit and proper to allow the said document to be taken on record and exhibited in the case subject to objection to be raised by plaintiff-respondent. 10. Consequently, the writ petition is allowed. The impugned order dated 13th September, 2006 passed by the trial court is set-aside. The document may be taken on record and be exhibited in the case subject to objection to be raised by plaintiff-respondent. 11. The cost is made easy. 12. In view of above, there is no need to pass any order on the application filed by the respondents under Article 226(3) of the Constitution and that automatically stands disposed of. (NARENDRA KUMAR JAIN),J. DK