C.R. No. 5448 of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 5448 of 2004 Date of Decision: 14.09.2009 Mr. Amandeep Singh Gill son of S. Mehtab Singh Gill son of S. Devinder Singh Gill, resident of Bir Charick, Tehsil and District Moga. ... Revision-Petitioner Versus 1. The State of Punjab through Collector Moga. 2. State of Punjab through Principal Secretary to Government Punjab (Agriculture Department) Mini Secretariat, Sector 9, Chandigarh. 3. The Chief Agricultural Officer, Moga. 4. Farm Manager Government Seed Farm, Charick, VPO Bir Mandrian Wala, Tehsil and District Moga. 5. Deputy Director Horticulture Faridkot (Price). 6. Farm Manager (Horticulture Development Officer), Government Seed Farm, Bir Charick, Moga, District Moga. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Arun Jain, Senior Advocate, with Mr. Anupam Sharma, Advocate, for the revision-petitioner. Mr. Vivek Chauhan, Assistant Advocate General, Punjab, for the respondents. SHAM SUNDER, J. * * * * This revision-petition under Article 227 of the Constitution of India, is directed against the order dated 07.10.04, rendered by the Court of C.R. No. 5448 of 2004 2 Civil Judge (Senior Division), Ludhiana, vide which, the defendants, were allowed to prove the sale deeds, in question, from the office of the Sub- Registrar. 2. The facts, in brief, are that the plaintiff/revision-petitioner, filed a suit bearing No.859-1/2/13-x-98/RB/73/4.9.2001 for possession of land, measuring 74 kanals, 15 marlas, as fully detailed, in the head note of the plaint, on the basis of ownership, reflected in the revenue record. 3. The defendants/respondents, however, claimed the ownership of the land, in dispute, on the basis of the sale deeds dated 15.05.58 and 14.03.61. They earlier moved an application, for leading secondary evidence of the aforesaid sale deeds, in the aforesaid suit, which was dismissed by the Court of Civil Judge (Senior Division), Ludhiana, vide order dated 11.10.01. Civil Revision-Petition No.181/2002, filed against that order, was also dismissed, by this Court, vide order dated 28.02.02, and Special Leave Petition, filed by them, in the Apex Court, was dismissed,vide order dated 11.07.02. 4. Later on, the defendants/respondents, moved an application, to the effect, that permission be granted, to them, to prove the sale deeds, from the Registration Book, kept in the office of Sub-Registrar, being the primary evidence. That application, was allowed by the Court below, vide the order impugned. 5. Feeling aggrieved, the instant revision-petition, has been filed by the revision-petitioner. 6. I have heard the Counsel for the parties, and have gone through and perused the documents, on record, carefully. 7. The Counsel for the revision-petitioner, submitted that a copy of the sale deed, kept in the Registration Book is not the original document, C.R. No. 5448 of 2004 3 as the original sale deed after registration is returned to the vendee and, thus, the same, cannot be said to be the primary evidence. He further submitted that copies of the sale deeds, kept in the Registration Book of the Sub-Registrar, being not public documents, do not fall in the category of documents, referred to in clauses (e) and (f) of Section 74 of the Indian Evidence Act. He further submitted that even the secondary evidence, in respect of the copies of such documents, cannot be permitted, until and unless, existence and loss of the original, is proved. He further submitted that when the earlier application, moved by the defendants/respondents, for leading secondary evidence of the sale deeds aforesaid, was dismissed vide order dated 11.10.01, by the trial Court, on the ground, that they had failed to prove the existence and loss of the original, and even the revision- petition, filed against the same, as also the Special Leave Petition filed, in the Apex Court, were dismissed, the application, moved by the defendants/respondents, on the basis whereof, the impugned order, was passed, was barred by the principles of resjudicata. He also placed reliance on Gutari Vs. Shiv Charan and others, 1980, HLR, 273, a case, decided by a Full Bench of this Court, G. Chikkapapanna alias G. C. Papanna Vs. Smt. Kenchamma (deceased) by LRs and others, (1999(1), Civil Court Cases (Karnataka), 611, Y.B. Patil and others Vs. Y.L. Patil, AIR, 1977 (SC), 392, and Prahlad Singh and another Vs. Niyaz Ahmad and others, AIR, 2001, Allahabad, 78, in support of his contentions. He further submitted that the order impugned, being illegal and perverse, is liable to be set aside. 8. On the other hand, the Counsel for the respondents, submitted that the earlier application, was for leading secondary evidence of the sale C.R. No. 5448 of 2004 4 deeds, which was dismissed by the trial Court, this Court, as also the Apex Court. He further submitted that, by way of the application, on which, the impugned order, was passed, the defendants/respondents, want to prove the original documents i.e. copies of the sale deeds, kept in the Registration Book of the Sub-Registrar. He further submitted that the trial Court was right, in holding that the documents, sought to be proved, constituted the primary evidence. He also placed reliance on Smt. Kamala Rajamanikkam Vs. Smt. Sushila Thakur Dass and others, AIR 1983, Allahabad, 90, Smt. Rajrani Sehgal, Vs. Parshottam Lal and others, AIR 1992, Delhi, 134, and Prithi Chand Vs. State of Himachal Pradesh, AIR 1989 (SC), 702, in support of his contentions. He further submitted that the order impugned, being legal and valid, does not warrant any interference. 9. The first question, that arises for consideration is, as to whether, the documents, sought to be proved, by the defendants/respondents, claiming the same to be primary evidence, could actually be characterized as constituting the primary evidence, or not. In the instant case, no doubt, the Counsel for the respondents, submitted that the copies of the sale deeds, in question, placed in the Registration Book of the Sub-Registrar, constitute primary evidence. However, this contention of the Counsel for the respondents, does not seem to be correct. It was only the transcribed copy of the sale deed dated 15.05.58, and copy of the sale deed dated 14.03.61, which were kept in the Registration Book of the Sub- Registrar, as the original sale deeds, if any, were returned to the vendees. The trial Court, placed reliance on explanations 1 and 2 of Section 62 of the Indian Evidence Act, to come to the conclusion, that the copies, sought to be proved, by the defendants/respondents, from the Registration Book of the Sub-Registrar, constituted primary evidence. According to explanation 1, C.R. No. 5448 of 2004 5 added to Section 62 of the Indian Evidence Act, where a document, is executed, in several parts, each part is primary evidence of the document. Where a document is executed in counterpart, each counterpart, being executed by one or some of the parties only, is primary evidence, as against the parties executing it. This explanation, is not attracted to the present case. It was not the case of the defendants/respondents that the sale deeds were executed, in several parts, or in counter-part. According to explanation 2, where a number of documents, are all made by one uniform process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest; but, where they are all copies of the common original, they are not primary evidence of the contents of the original. In the instant case, neither the transcribed copy of the sale deed dated 15.05.58, nor copy of the sale deed dated 14.03.61, kept in the Registration Book of the Sub-Registrar, was made, by one uniform process, as envisaged by explanation 2, referred to above. At the most, the same could be said to be the copies of the common original, and, thus, are not the primary evidence of the contents of the original. It was held in Gutari's, and G. Chikkapapanna's cases (supra) that a document, executed by an individual, and registered under the Registration Act, is not a public document. Original copy of a registered document, being not a public document, does not fall in the category of documents, referred to in clauses (e) and (f) of Section 74 of the Indian Evidence Act. Secondary evidence, in respect of such a document, cannot even be permitted, until and unless loss of the original document, is accounted for, to the satisfaction of the Court. The trial Court was, thus, wrong in holding, that the copies of the sale deeds, in question, kept in the Registration Book of the Sub-Registrar, and sought to be proved, by the defendants, constitute the primary evidence. C.R. No. 5448 of 2004 6 10. Now coming to the cases, relied upon by the Counsel for the respondents, it may be stated here, that the ratio of law, laid down therein, admits of no dispute, but the facts of the same, are distinguishable, from the facts of the instant case. In Smt. Kamala Rajamanikkam's and Prithi Chand's cases (supra), carbon copies of the documents, made by one uniform process, were sought to be proved, and it was held that the same constituted the primary evidence. In Smt. Raj Rani Sehgal's case (supra), the will was executed, in several parts, each bearing the signatures of the executant, and the attesting witnesses, and, thus, it was held that each part was the primary evidence. No help, therefore, can be drawn, by the Counsel for the defendants/respondents, from the principle of law, laid down in these cases. 11. Earlier, an application, was moved by the defendants/respondents, for leading secondary evidence, in respect of the sale deeds dated 15.05.58 and 14.03.61, on the ground, that the originals were lost. The Court of Civil Judge (Senior Division), Ludhiana, vide order dated 11.10.01, dismissed that application, on the ground, that the loss of those documents, was not proved. A revision-petition, was filed, against that order, which was dismissed by this Court, vide order dated 28.02.02. Undeterred by their failure, the defendants/respondents, filed a Special Leave Petition, which was dismissed by the Apex Court, vide order dated 11.07.02. It means that the matter attained finality upto the Apex Court. As stated above, copies of the sale deeds, in question, kept in the Registration Book of the Sub-Registrar, do not constitute the primary evidence. At the most, certified copies thereof, can be permitted to be led as secondary evidence, if the existence and loss of the originals is proved. The application for leading secondary evidence of these sale deeds, having C.R. No. 5448 of 2004 7 already been dismissed, upto the Apex Court, and, thus, attained finality, the second application, for the same relief, was barred by the principles of res- judicata. In Y.B. Patil and others' case (supra), the principle of law, laid down, by the Apex Court, was to the effect, that the principles of res- judicata, can be invoked not only in separate subsequent proceedings; the same also get attracted, in subsequent stage of the same proceedings. Once an order, made in the course of a proceeding becomes final, it would be binding at the subsequent stage of that proceeding. In Prahlad Singh and another's case (supra), the defendant was proceeded against exparte. An application under Order IX Rule 7 of the Code of Civil Procedure, filed by him, for setting aside the ex-parte proceedings order, was dismissed. Subsequently, an application filed, by the plaintiff, for the amendment of plaint, was allowed. Thereafter, a fresh application, under Order IX Rule 7 of the Code of Civil Procedure, was filed by the defendant. In these circumstances, it was held, that the subsequent application under Order IX Rule 7 was barred by the principles of res-judicata. It was further held that merely because the amendment application, was allowed, that could not give any fresh right, to the defendant, to file another application, under Order IX Rule 7 of the Code of Civil Procedure. The provisions of Section 11 of the Code of Civil Procedure, are, thus, not only attracted to the suit, but are also applicable to the miscellaneous proceedings, during the course of trial. The subsequent application, in which, the impugned order, was passed, was, thus, barred by the principles of res-judicata. The principle of law laid down, in the aforesaid cases, is fully applicable to the facts of this case. The Court below, thus, could not even investigate into the matter again, what to speak of pronouncing a fresh decision, once the decision, on the earlier application, for secondary evidence, had attained finality, upto C.R. No. 5448 of 2004 8 the Apex Court. 12. The order impugned, suffers from illegality, material irregularity, and perversity, warranting interference, of this Court, in its revisional jurisdiction, under Article 227 of the Constitution of India. The order impugned is, thus, liable to be set aside. 13. For the reasons recorded above, the revision-petition, is accepted. The order dated 7.10.2004, is set aside. The trial Court is directed not to permit the leading of evidence, in the case, in violation of the order dated 11.07.2002, passed by the Apex Court, referred to above. The parties, are directed to appear, in the trial Court, on 15.10.09, at 10.00 AM sharp, for further proceedings. 14.09.2009 (SHAM SUNDER) Amodh/ashish JUDGE