Civil Revision No.7204 of 2008(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.7204 of 2008(O&M) Date of decision : 11.09.2009 Bahadur Singh ......Petitioner VERSUS Dalbir Singh and others ......Respondents CORAM:- HON'BLE MR. JUSTICE A.N.JINDAL Present: Mr.D.S.Pheruman, Advocate, for the petitioner. Mr.B.S.Jaswal, Advocate, for respondents No.1 to 4. ***** A.N.JINDAL, J(ORAL): This revision petition is directed against the order dated 20.11.2008, passed by Additional Civil Judge (Senior Division), Baba Bakala declining to grant permission to lead secondary evidence to the plaintiff-petitioner (herein referred as 'the plaintiff) by way of proving the photo copies of two affidavits (Annexures P5 and P6) of Nazar Singh- respondent No.4 and Dalbir Singh-respondent No.1 (both are defendants in the suit). The plaintiff while seeking declaration that he is owner in possession of the land, as fully detailed in the head note of the plaint, has placed reliance on the family partition dated 28.03.1961 and further alleged that on 04.05.2004 i.e. prior to the filing of the suit, Dalbir Singh,Ujaggar Singh and Nazar Singh sons of Sunder Singh had acknowledged the said family settlement by way of furnishing affidavits but those original affidavits could not be produced as the same were in possession of his adversaries. Therefore, secondary evidence by way of proving the copies of affidavits is necessitated. Heard. On scrutiny of the impugned order, it transpires that the same having been recorded against facts has been rendered as illegal, requiring interference by this Court. The plaintiff has filed the suit for declaration and possession on the basis of a family partition/family settlement dated 28.03.1961 and he wants to prove the affidavits of Nazar Civil Revision No.7204 of 2008(O&M) 2 Singh and Dalbir Singh in order to establish that these two defendants had acknowledged the family settlement on 04.05.2004 by furnishing affidavits duly attested by the Magistrate. Notwithstanding the fact that Section 63 of the Act relating to secondary evidence does not include the photo copies of the documents yet it appears that this section was incorporated in the Evidence Act when there was no mechanism for preparation of the photocopies of the documents. However, Section 63 by implication does not exclude photo copies of the original. Section 63 of the Act is reproduced as under:- “63: Secondary evidence – Secondary evidence means and includes (i)Certified copies given under the provisions hereinafter contained; (ii)Copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy and copies compared with such copies; (iii)Copies made from or compared with the original; (iv)Counterparts of documents as against the parties who did not execute them; (v)Oral accounts of the contents of a document given by some person who has himself seen it. No doubt, in order to bring on record the secondary evidence, the party seeking to lead such evidence has to overcome two hurdles firstly the documents sought to be produced by way of secondary evidence should be within the scope of Section 63 of the Act and secondly if it is found to be so then Section 65 of the Act comes into play which reads as under:- “Cases in which secondary evidence relating to documents may be given – Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:- (a) 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 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 the notice mentioned in Section 66, such person does not produce it.” Civil Revision No.7204 of 2008(O&M) 3 In the instant case, the photo copies of the affidavits are sought to be produced only to prove the acknowledgment of the family partition dated 28.03.1961 by the defendants Dalbir Singh and Nazar Singh. Secondly, these documents are stated to be copies made from the original and it is still to be proved as to whether these are made from or are compared with the original which fact could obviously be proved by way of leading evidence of Judicial Magistrate or witnesses before whom they had sworn in. As such, there was no bar for permitting the plaintiff to lead secondary evidence for proving the documents subject to their value, admissibility, reliability and mode of proof, which are the subjects to be examined lateron. The trial Court has not taken note of the said aspects of the case, therefore, the order being illegal and against the facts needed interference by this Court at this revisional stage. Resultantly, I allow this petition, set aside the impugned order and accept the application for leading secondary evidence to prove the two documents as aforesaid, subject to just exceptions with regard to admissibility, reliability and mode of proof. (A.N.Jindal) Judge 11.09.2009 mamta-II