IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.628 of 2009 Date of decision: 21.12.2010 Suresht Kumar …. Petitioner Versus Smt.Chander Kanta ….. Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting? No For the petitioner: Mr.Deepak Kaushal, Advocate. For the respondent: Mr.Sanjeev Kuthiala, Advocate. _____________________________________________ Deepak Gupta, J.(Oral) 1. This petition is directed against the order dated 8.9.2009 passed by the learned Civil Judge (Jr.Division), Nahan, District Sirmaur whereby he dismissed the application filed by the petitioner (hereinafter referred to as the ‘defendant’) to lead secondary evidence to prove on record a copy of document of Exchange dated 3.6.1977. 2 2. Briefly stated the facts of the case are that the plaintiff filed a suit for partition as well as for injunction. It is not necessary to give the entire details of the dispute but it would be pertinent to note that the defendant alleged that a part of the suit land had fallen to his share vide an exchange and such memo of exchange was executed on 3.6.1977. Alongwith the written statement, a photocopy of the memo of exchange was filed and it was clearly stated that the original is with Sh.Bhek Chand. It is not disputed that the plaintiff derives title from Bhek Chand. The written statement was filed in March, 2005 and it appears that Sh.Bhek Chand also expired in the year 2005. Issues in the suit were framed on 18.8.2005 and the suit was listed for the evidence of the plaintiff. Thereafter, the husband and General Power of Attorney of the plaintiff appeared on her behalf. He was duly confronted with the photocopy of the document which was on record but he denied the execution of the sale by Sh.Bhek Chand. 3. Thereafter, an application was filed that the document should be either in the possession of Bhek Chand or since he had allegedly sold the land 3 to the plaintiff, he must have handed over it to the plaintiff. Since the original exchange deed was not in the possession of the defendant, the defendant sought permission to lead secondary evidence to prove the same. This application was opposed and the learned Trial Court rejected the same on the ground that according to the defendant, the plaintiff was in possession of the original document but in terms of Section 66 of the Indian Evidence Act, a notice should have been given to the plaintiff to produce such document and in the absence of such notice, the defendant could not be permitted to lead secondary evidence. The other ground taken for rejecting the application was that the written statement was filed on 16.3.2005 and the replication was filed on 6.5.2005 but no steps were taken to issue notice as mandated by Sections 65 and 66 of the Indian Evidence Act. 4. The Apex Court in J.Yashoda Vs. K.Shobha Rani, 2007 (5) SCC 730 has laid down the following principles relating to the admissibility of secondary evidence:- 4 “7. Secondary evidence, as a general rule is admissible only in the absence of primary evidence. If the original itself is found to be inadmissible through failure of the party, who files it to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contents. 8. Essentially, secondary evidence is an evidence which may be given in the absence of that better evidence which law requires to be given first, when a proper explanation of its absence is given. The definition in Section 63 is exhaustive as the section declares that secondary evidence “means and includes” and then follow the five kinds of secondary evidence.” 5. There is no manner of doubt that the original document is the best document which must be normally proved. A party can be permitted to lead secondary evidence only if it gives a reasonable explanation for the non-production of the original. Various situations are set out in Sections 65 and 66 of the Indian Evidence Act itself where such evidence can be permitted to be led. Basically a party is permitted to lead secondary evidence either where the original has been lost or destroyed or the original is in the custody of some other person who is not 5 producing it despite notice or it is not known in whose custody the original is. 6. In the present case, the defendant in their written statement alleged that the original document was in the custody of Bhek Chand. In the application, it was stated that Bhek Chand would probably have given this document to the plaintiff at the time of selling the property, in question. Since Bhek Chand is dead, obviously no notice can be given to him to produce the said document. 7. The second situation can be that the document was handed over by Bhek Chand to the plaintiff. According to the learned Trial Court since the defendant did not give notice to the plaintiff to produce the document, it cannot be permitted to lead secondary evidence with regard to the said document. This approach, to my mind, to say the least, is pedantic. A Court must see, what is the factual situation before it. Here is a case where the defendant in the written statement had set up a document of exchange and claimed that the original was in the custody of Bhek Chand and the plaintiff in the replication denied such averments. The plaintiff, 6 in fact, denied the very execution of the document itself. When this document was put to the General Power of Attorney of the plaintiff, he denied the validity of the document and claimed that no such exchange had taken place. Therefore, the execution of the document was denied. When a party is denying that such document was ever executed, there is no purpose of issuing a notice to the same party to produce the document. 8. Even when the application for leading secondary evidence was filed, the plaintiff in reply clearly stated that no such document had been executed by Bhek Chand. If that be the stand of the plaintiff then what is the purpose of issuing notice to the plaintiff to produce such a document. 9. As far as delay is concerned, I am constrained to observe that the approach of the learned Trial Court shows total non-application of mind. A party is not supposed to give notice or apply for permission to lead secondary evidence to prove a document at the initial stage itself. In case the General Power of Attorney of the plaintiff had admitted the execution of the document, there was 7 no need to lead secondary evidence. Need to lead secondary evidence arose only after the plaintiff’s Attorney denied that such a document had been executed. 10. In view of the above discussion, I am of the considered view that the learned Trial Court gravely erred in dismissing the application. The petition is allowed and the petitioner-defendant is permitted to lead secondary evidence to prove the memo of exchange dated 3.6.1977. It is however, made clear that it shall be open to the plaintiff to object to the admissibility of the document on the ground that even the original document could not have been admitted since it was neither registered nor stamped in accordance with law. It is also made clear that merely permitting the petitioner to lead secondary evidence does not mean that the authenticity of the document has been accepted. It is for the defendant to prove that the document which he wants to prove by leading secondary evidence is an authentic document which can be relied upon by the court. Since the original suit was filed in the year 2005, the learned Trial Court shall endeavour to decide the 8 same at the earliest and in any event not later than 31.8.2011. The parties through their counsel are directed to appear before the learned Trial Court on 15.2.2011. 11. The petition is disposed of in the aforesaid terms. No order as to costs. December 21, 2010 ( Deepak Gupta ) (m) Judge