IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1461 of 2008 1. Ganesh Mahto, son of Late Harihar Mahto. 2. Kapleshwar Mahto, son of Late Harihar Mahto. Both are residents of Mohalla-Bakarganj Nunfarwa, P.O. and P.S.- Laheria Sarai, District-Darbhanga. ………………..……………. Plaintiff/Petitioners Versus 1. Ram Pari Devi, wife of Dorik Mahto. 2. Dorik Mahto, son of Late Sone Lal Mahto. Both are residents of Mohalla-Bakarganj, P.O. and PS.-Laheria Sarai, District-Darbhanga. …………………….. Defendants/Opposite Parties. ----------- 3 09.2009 Heard counsel for the petitioners. In this case by the impugned order dated 18.7.2008 the court below has allowed application of the defendants-opposite parties for exhibiting certified copy of the sale deed dated 22.12.1979 and the certified copy of deed of rectification dated 4.10.1982 as a secondary evidence. Counsel for the plaintiffs-petitioners would submit that as original of the aforementioned documents have neither been lost nor destroyed; approach of the court below in allowing the secondary evidence to be adduced by the defendants-opposite parties is patently illegal and in teeth of the provision in Section 63 of the Evidence Act. In the opinion of this court the meaning of expression ‘lost’ or ‘destroyed’ in terms of section 63 of the Evidence Act has to be understood in the context it has been so used. From the impugned order of the court below it would be found that in a suit of the year 1996 the plea taken by the defendants-opposite parties was that the sale deed dated 22.12.1979 and the registered deed of 2 rectification dated 4.10.1982 were available in the records of Title Suit No. 14/1990 pending in the court of A.D.J. F.T.C.-III, Darbhanga, but then order of the court below dated 8.12.2004 for production of those two original documents from the aforesaid court had yielded no fruitful result. It was under these circumstances that after four years the court below had allowed prayer of the defendants-opposite parties for adducing them by way of secondary evidence by recording the following findings:- “nksuksa i{kksa dks lquus ,oa vfHkys[k dk ifj”hyu djus ds Ik’pkr eSa ikrk gwW fd mDr nksuksa nLrkostksa dh ewy izfr dks vihyh; U;k;ky; esa eaxkus gsrq fnukad 8&12&04 ls iz;kl fd;k tk jgk gS ftlds fy, vusd i= ,oa Lekj i= Hkstk x;k ijUrq vHkhrd nLrkost izkIr ugha gqvk gS vkSj u gh bl lEcU/k esa dksbZ tcko izkIr gqvk gS A oknh us Hkh vius izfrmRrj esa dgk gS fd fdz0fj0fHktu esa ls Hkstk x;k nLrkost iqu%eqaflQ ds U;k;ky; dks izkIr ugha gqvk A vr%ekeys ds ifjfLFkfr;ksa ls eSa ikrk gwa fd mDr fookfnr nLrkost ds ewy dks izLrqr djus gsrq igys gh yxHkx pkj o"kZ dk le; O;rhr gks pwdk gS vkSj mlds fudV Hkfo"; esa Hkh vkus dh lEHkkouk izrhr ugha gksrh gS A vr%izfroknh dk vkosnu Lohdkj djrs gq, mls funsZ” fn;k tkrk gS fd og vfHkizekf.kr izfrfyfi dks f}rh; lk{; ds :Ik esa izn”Z vafdr djkus gsrq vko’;d dk;Zokgh djsa A” In the opinion of this Court such approach of the court below does not suffer from any infirmity, muchless, from jurisdictional error. Reference in this connection may be made to the judgment of Panjab & Hariyana High Court in the case of ‘Smt. Shobha Rani Vs. Ravi Kumar’ reported in AIR P&H 421, wherein it was held that even if presence of documents is proved subsequently, the court can still allow leading of secondary 3 evidence. In a given situation when the court below had found it impossible to get the original documents from the Court of A.D.J. F.T.C-III as indicated in the order itself, this Court would find no jurisdictional error in proceeding with the suit by allowing the defendants to produce secondary evidence in support of two registered deeds. In that view of the matter, while this Court would not interfere with the impugned order, it would, however, direct the District Judge, Darbhanga to ensure that the two documents allegedly available in the file of Title Appeal No.14/1990 said to be pending in the court of A.D.J. F.T.C-III is also made available for perusal of the court, whereafter if title appeal is still pending the same would be returned back to the court of A.D.J. F.T.C-III for their being marked as Exhibit and return to the concerned court after its comparison with the certified copy already taken on record by way of secondary evidence. It is, however, made clear that if for any reason the said documents cannot be found in the records of the aforementioned Title Appeal no. 14/1990, the court below in the present case would proceed on the basis of secondary evidence. With the aforementioned observations/directions this application is disposed of. Let a copy of this order be sent to District Judge, Darbhanga. Abhay Kumar (Mihir Kumar Jha, J.)