Civil Revision No.4907 of 2007 : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.4907 of 2007 Date of Decision: April 22, 2008 Smt.Bhuro ...Petitioner VERSUS Bhateri & others ...Respondents CORAM: HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Rajesh Chaudhary, Advocate, for the petitioner. Mr.Ashish Yadav, Advocate, for respondent No.1. Mr.T.M.Sayal, Advocate, for respondent No.4. ***** RANJIT SINGH, J. The petitioner-defendant has filed this revision petition to impugn the order passed by the trial court in permitting the respondent-plaintiff to produce secondary evidence in regard to the Will. The alleged Will is dated 20.1.2000. It is supposed to be Civil Revision No.4907 of 2007 : 2 : executed by father of the respondent-plaintiff. The prayer for grant of permission to lead secondary evidence in regard to this Will is made on the ground that the original was produced before Revenue Patwari on 15.11.2003 for the purpose of entering mutation on the basis of the said Will. It is further disclosed that mutation No.1761 was entered on the basis of the Will, but later the mutation was converted on the basis of a general succession basis. It is claimed on this basis that the Will got lost and even after search, the same has not been traced. The photo copy of the Will is statedly available with the plaintiff-respondent along with the register of Documents Writer, which is sought to be led by way of a secondary evidence. The respondent had prayed for producing the photo copy of the Will and the extract of the register of Documents Writer, where the original thumb marks of the executant were existing. The application was opposed by the petitioner on the ground that the Will is a fabricated and a forged document and accordingly it was prayed that the application be dismissed. Counsel representing the parties before the trial court relied upon various judgments which were duly considered and ultimately the application was allowed permitting the respondent to lead the said secondary evidence in regard to the Will and the entries in the register of Documents Writer. The learned counsel representing the petitioner would submit that the respondent had not been able to establish the loss of the original Will to entitle him to lead the secondary evidence in regard to the Will. On the other hand, the counsel for the respondent Civil Revision No.4907 of 2007 : 3 : would say that prayer for secondary evidence cannot be rejected summarily by saying that the document is forged and once the foundation for secondary evidence is made out, the party is entitled to prove existence of the document and its contents by leading secondary evidence for which he must be given an opportunity. Having considered the rival contentions made before me, I am of the view that the respondent has not laid the proper basis for showing the loss of the original Will, which would have entitled him to lead the secondary evidence in regard to the Will or in regard to the entries in the register. Section 65 of the Indian Evidence Act regulates the cases in which secondary evidence relating to a document may be given. As per this provision, secondary evidence may be given of the existence, condition, or contents of the document in those cases where original is shown or appears to be in 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 notice mentioned in Section 66, such person does not produce it. The secondary evidence is also permissible when the existence, condition or contents of the original are to be proved to be admitted in writing by the person against whom it is proved or by his representative in interest. Similarly, secondary evidence can be permitted when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reasons not arising from his own default or neglect, produce it in reasonable time. There are some other Civil Revision No.4907 of 2007 : 4 : conditions where permission to lead secondary evidence can be granted but would not be relevant for decision in the present case. The case of the respondent was basically on the ground that the original has been lost. In such a case, any secondary evidence of the contents of a document is admissible. As per Section 63 of the Indian Evidence Act, secondary evidence means to produce copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies. Certified copy given under the provisions is also a form of secondary evidence. Copies made from or compared with the original is again a secondary evidence. Even oral accounts of the contents of a document given by a person, who has himself seen it, is a secondary evidence. It has been rightly urged by the counsel for the petitioner that according to Section 65 of the Evidence Act, the essential conditions to be satisfied before granting permission to lead secondary evidence would be the existence of a document which might have been lost or destroyed. Both the counsel have relied upon the case of P.K.Gupta Vs. Varinder Sharma, 2002 (2) Civil Court Cases 704= 2002(3) R.C.R. (Civil) 185, where this court has held that application for secondary evidence is not to be decided in a summary manner and is to be decided only after allowing opportunity to both the parties to show the existence of the document. In this regard, the relevant observations made by the court are reproduced below:- “A perusal of clause ( c ) of Section 65 of the Act would show that secondary evidence of existence, condition or Civil Revision No.4907 of 2007 : 5 : contents of a document can also be adduced when the party offering evidence of its contents cannot produce the original in reasonable time. But such a delay in production of the document should not have arisen from the fault or neglect of the party who wish to adduce secondary evidence of the document. To succeed in getting permission to adduce secondary evidence it must be shown that the document was in existence which was capable of being proved by secondary evidence and secondly proper foundation must be laid to establish the right to adduce secondary evidence. This view has been taken by a Constitution Bench of the Supreme Court in the case of Roman Catholic Mission v. State of Madra, A.I.R. 1966 S.C. 1457. Another well-known principle with regard to proof of facts is that best evidence must come before the Court because the best evidence which is, of course, the original document would furnish an opportunity to the Court to examine various surrounding facts attached with the original alone like the veraciousness of the signatures of the parties, the age of the document and other host of factors depending on the facts of each case. It is in the absence of the best evidence that the secondary evidence is allowed to be adduced because the object of judicial investigation by Court is to fathom the truth. Therefore, the law although insists upon production of the best evidence i.e. the Civil Revision No.4907 of 2007 : 6 : original document yet it permit with proper safeguards the production of the secondary evidence of the original if certain conditions are satisfied, namely, the existence of the document which might have been lost or destroyed or the party in whose possession the original is shown or appears to be have refused to produce it before the Court despite notice or its existence, condition or contents have been proved to be admitted in writing so on and so forth. The rule regarding secondary evidence is not an open rule allowing any piece of photostat copies or an oral account of the original and the likewise to be tendered as secondary evidence.” The learned counsel for the petitioner has justifiably argued that the respondent did not succeed in proving the existence of the original Will, which could have entitled him to lead the secondary evidence in this regard. He would point out that the respondent had even not filed an affidavit in support of his application that the original had been lost. The verification on the application, which was done by the respondent and is relied upon by his counsel before this court, cannot be a substitute of an affidavit which would have to an extent prima-facie indicated the evidence about loss of the said document. The counsel for the petitioner is justified in contending that the respondent could have given evidence about the loss of this document by producing either the Revenue Patwari or some such evidence to show the existence of original Will, which was allegedly handed over to the Revenue Patwari for the purpose of Civil Revision No.4907 of 2007 : 7 : mutation. It is seen that even the mutation was not ultimately done on the basis of Will, but is on the basis of natural succession. This aspect would create another doubt in regard to the existence of a original Will which is being pleaded to be lost. Accordingly, the conditions contained in Section 65 of the Evidence Act apparently are not fully satisfied in this case which could have entitled the respondent to lead secondary evidence. However, the plea raised on behalf of the respondent cannot be ignored altogether as there are some indications available on the record in regard to the Will which has been set up at least from the entries in the register of the Documents Writer. Though the impugned order cannot be sustained, but another opportunity needs to be given to the respective parties to plead their case before the trial court. It is so ordered. The impugned order is set-aside. The case will go back to the trial court to re- determine the entire issue on the application filed by the respondent for leading secondary evidence in regard to the Will and other documents. The parties shall be given opportunity to lead respective evidence/material in support of their plea to show the loss of the document and trial court would be at liberty to pass a fresh order on merits to see if the case for leading second evidence is made out or not. The revision is accordingly disposed of in the above terms. April 22, 2008 ( RANJIT SINGH ) ramesh JUDGE