:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7149 OF 2004 WRIT PETITION NO.7149 OF 2004 WRIT PETITION NO.7149 OF 2004 Yeshwant Rambhau Chondhe since deceased through his legal heirs & Ors. Tanaji Yeshwant Chondhe and Ors. .. Petitioners. (Orig.Plaintiffs) Versus Vilas Bapurao Shinde since deceased, through his legal heirs Vijaya Vilas Shinde & Ors. .. Respondents. (Orig.Defendants) Shri.S.M.Gorwadkar for petitioners. Shri.V.B.Naik for respondents 1 to 7, 9 and 10. (Respondents 11 to 25 deleted as per Court’s order dated 6th June, 2007). CORAM : R.M. SAVANT, J. CORAM : R.M. SAVANT, J. CORAM : R.M. SAVANT, J. DATE OF JUDGEMENT RESERVED ON : 06.06.2007. DATE OF JUDGEMENT RESERVED ON : 06.06.2007. DATE OF JUDGEMENT RESERVED ON : 06.06.2007. DATE OF JUDGEMENT PRONOUNCED ON : 28.06.2007. DATE OF JUDGEMENT PRONOUNCED ON : 28.06.2007. DATE OF JUDGEMENT PRONOUNCED ON : 28.06.2007. JUDGEMENT JUDGEMENT JUDGEMENT : - 1. Rule. By consent of parties made returnable forthwith and heard. 2. This petition filed under Article 227 of the Constitution of India raises an issue as to whether the petitioners herein, who are the original plaintiffs should be allowed to lead :2: secondary evidence. The said issue arises in the context of the decision of the Trial Court who refused to exhibit the certified copies of the registered documents by rejecting the application of the petitioners-plaintiffs marked as Exhibit-1 vide the impugned order dated 22nd July, 2004. 3. The factual matrix involved in the present petition is stated thus :- a. The petitioners-plaintiffs and the respondents 18 to 25 herein have filed R.C.S. No.1075 of 1996 in the Court of the Civil Judge, Junior Division, Pune claiming specific performance of the Agreements for sale dated 30th July, 1956 and 18th July, 1957 against the respondents 1 to 17 herein. b. The suit property is survey No.12 and survey No.171/4 admeasuring about 9 :3: acres and 1 guntha at village Aundh, Taluka and District Pune. The ancestor of the petitioners-plaintiffs late Rambhau Haribhau Chondhe was the tenant in the said land. c. By the registered agreements between Rambhau Haribhau Chondhe and the owners, namely, deceased Bhikoba, deceased Vilas Bapurao Shinde with Ashok and Sambhaji agreed to sell the said property to the petitioners-plaintiffs. It was agreed that the said late Rambhau Haribhau Chondhe would surrender his tenancy rights for effecting the sale. d. The possession of the suit property was to be given to the petitioners-plaintiffs by the said deceased Rambhau and confirmed by the deceased Bhikoba Shinde and Vilas Shinde :4: with Ashok Shinde and Sambhaji Shinde. Since the petitioners-plaintiffs are in continuous possession of the same. e. The respondents 1 to 3 are the legal heirs of the deceased Tarabai while respondents 4 to 10 are the legal heirs of the deceased Bhikoba. f. It was agreed between the parties that the conveyance would be executed after the final settlement of the dispute with one Chunilal Lacchiram Khivsara and also with Yeshwant Ganpat Gaikwad in Civil Suit No.1254 of 1955. The respondents 1 to 10 herein had agreed to make the title clear and marketable. Since the Civil Suit No.1254 of 1955 was decided finally on 11.10.1995, the petitioners-plaintiffs approached the defendants for execution of the :5: Conveyance of the suit property but the defendants 1 to 10 avoided to perform their part of the contract. The petitioners-plaintiffs, therefore, were constrained to file R.C.S.No.1075 of 1996 on 16.07.1996 for specific performance of the said contract. In the said suit in the list of documents, a mention of the agreements dated 30.07.1956 and 18.07.1957 finds a place, as the documents on which the petitioners-plaintiffs would rely. However, there is no averment in the plaint as regards whether the petitioners-plaintiffs are in possession of the said documents or as to who is in the possession of the said documents. g. On behalf of the petitioners-plaintiffs, the petitioner No.1(a) herein filed his affidavit of :6: examination-in-chief on 13.11.2003 and also filed certified copies of the registered agreements of sale dated 30.07.1956 and 16.07.1957 with list of documents, which was numbered as Exhibit-177. The contesting defendants i.e. respondents 1 to 10 herein filed an application at Exhibit-179 and prayed that the said certified copies of the registered Agreements of Sale dated 30.07.1956 and 16.07.1957 may not be exhibited. h. The petitioners-plaintiffs filed their say to the said Exhibit-179, which was marked as Exhibit-182 and pointed out that the affidavit of evidence indicates that the originals of the said documents are missing and are not traceable and, therefore, it was essential to lead secondary evidence of the said documents. :7: The learned Civil Judge, Junior Division by order dated 02.01.2004 allowed Exhibit-179 i.e objection of the defendants for exhibiting the said documents and observed that it was necessary for the petitioners-plaintiffs to file an application for permission to lead secondary evidence and to lay foundation for the same. Since the said Exhibit-179 was not supported by any application for leading the secondary evidence, the learned Judge held that the documents could not be exhibited. i. The petitioners-plaintiffs, in view of the order passed on Exhibit-179 dated 02.01.2004, therefore, filed an application that the said documents produced with Exhibit-177 are the certified copies of the agreements dated 30.07.1956 and 18.07.1957 and the same :8: were furnished by the office of the Sub Registrar where the originals of the said agreements had been presented for registration. The petitioners-plaintiffs after mentioning about the execution of the said documents have stated that in the affidavit containing the examination-in-chief of Shri.Tanaji Yeshwant Chondhe dated 20.11.2003 in Para 13, it has been specifically stated and affirmed that the original documents are not traceable and even could not be traced in the office of the Sub Registrar, Haveli No.2 or the same could not be traced in the belongings of the late Yeshwant Chondhe, the father of the affiant Shri.Tanaji Chondhe. The petitioners-plaintiffs further stated in the said application that the said original documents are lost and are not available for being produced in the :9: proceedings and, therefore, the secondary evidence alongwith Exhibit-177 at Sr.No.1 and 2 by way of certified copies of the same are produced and the same are, therefore, required to be admitted as the evidence in the present proceedings. The petitioners-plaintiffs, therefore, prayed that the petitioners-plaintiffs should be granted the necessary permission to lead evidence by way of secondary evidence in relation to the said documents. j. To the said application of the petitioners-plaintiffs, a reply was filed by the contesting defendant Nos.1 to 3 and 7, who are the respondents in the present petition. The sum and substance of the reply was that the said application was not maintainable in view of the order passed on Exhibit-179 dated 02.01.2004. The defendants further :10: contended that leading evidence in the absence of pleadings was impermissible. k. The said application of the petitioners-plaintiffs was considered and the Trial Court vide its order dated 02.01.2004 rejected the said application principally on the ground that in view of the order passed on Exhibit-179, the aforesaid application without there being any foundation was not maintainable. Insofar as the point of res-judicata was concerned, the Trial Court did not accept the said submission of the defendants as according to it, the plea of res-judicata was not available at the said juncture. l. The petitioners-plaintiffs thereafter filed an additional affidavit of Shri.Tanaji Yeshwant Chondhe seemingly in compliance of the orders passed on :11: Exhibit-179 and Exhibit-185. In the said affidavit, the case of loss of the said documents was interalia stated. On the basis of which, a foundation was sought to be laid for leading secondary evidence. The said affidavit was numbered as Exhibit-204 and the prayer of the petitioners-plaintiffs numbered as Exhibit-1. The said application of the petitioners-plaintiffs came to be rejected by the Trial Court on the ground of res-judicata as also on the ground that no case in terms of Section 65 of the Evidence Act and the law laid down by this Court as well as Apex Court in the matter of laying foundation for leading evidence was made out by the petitioners-plaintiffs. It is against the said order dated 22.07.2004 passed by the learned Joint Civil Judge, Junior Division, Pune that the instant petition :12: is filed. 4. I have heard the learned counsel for the petitioners-plaintiffs Shri.Gorwadkar and the learned counsel for the contesting respondents Shri.V.B.Naik. 5. It is the contention of Shri.Gorwadkar while assailing the said order of the Trial Court refusing permission to exhibit the certified copies of the documents and thereby refusing the petitioners-plaintiffs permission to lead secondary evidence that if the originals are not produced, the petitioners-plaintiffs have every right to produce the certified copies of the same and they have to be accepted and the permission of the Court is not at all necessary. It was further contended by Shri.Gorwadkar that the orders passed on Exhibit-179 dated 02.01.2004 and the order passed on Exhibit-185 dated 22.07.2004 cannot operate as res-judicata as by the said :13: orders, the trial Court had directed the plaintiffs to follow a particular course of action in the matter of laying foundation for leading secondary evidence. Having laid the foundation by filing the affidavit Exhibit-204, the petitioners-plaintiffs are entitled to lead the secondary evidence and the Court cannot refuse the said permission. In any event, according to Shri.Gorwadkar, the procedure prescribed cannot be used as a shield to deprive the plaintiffs from relying upon the secondary evidence as ultimately procedure is only the handmaiden of justice and the Court with a view to do substantial justice can permit the petitioners to lead secondary evidence. 6. Shri.Gorwadkar further submitted that once certified copies are produced of the originals, they are admissible in evidence. Shri.Gorwadkar principally relied upon the judgement reported in AIR 1990 S.C. Pg.396 AIR 1990 S.C. Pg.396 AIR 1990 S.C. Pg.396 in :14: the matter of Kalyan Singh v/s.Chhoti & Ors. Kalyan Singh v/s.Chhoti & Ors. Kalyan Singh v/s.Chhoti & Ors. Paragraph 25 of the said judgement on which reliance is placed by Shri.Gorwadkar is reproduced hereunder : - "25. The High Court said, and in our opinion very rightly, that Ex.3 could not be regarded as secondary evidence. Section 63 of the Evidence Act mentions five kinds of secondary evidence. Clauses (1), (2) and (3) refer to copies of documents; clause (4) refers to counterparts of documents and clause (5) refers to oral accounts of the contents of documents. correctness of certified copies referred to in clause (1) is presumed under Section 79; but that of other copies must be proved by proper evidence. A certified copy of a registered sale deed may be produced a secondary evidence in the absence of the original. But in the present case Ex.3 is not certified copy. It is just an ordinary copy. There is also no evidence regarding content of the original sale deed. Ex.3 cannot therefore, be considered as secondary evidence. The appellate Court has a right an duty to exclude such evidence." 7. Shri.Gorwadkar also relied upon the following judgements : - 1) AIR 1991 AP Pg.31 AIR 1991 AP Pg.31 AIR 1991 AP Pg.31 in which it has been held :15: that a certified copy can be treated as secondary evidence. 2) AIR 1945 Bombay Pg.319 & AIR 1956 Bombay Pg.65 AIR 1945 Bombay Pg.319 & AIR 1956 Bombay Pg.65 AIR 1945 Bombay Pg.319 & AIR 1956 Bombay Pg.65 in which judgements, it has been held that certified copies prima-facie prove the execution of documents; And 3) 2000 (I) S.C.C. Pg.434 2000 (I) S.C.C. Pg.434 2000 (I) S.C.C. Pg.434, which is a judgement of the Apex Court in the matter of Ishwar Dass Ishwar Dass Ishwar Dass Jain v/s. Sohan Lal, Jain v/s. Sohan Lal, Jain v/s. Sohan Lal, the sum and substance of the said judgement as indicated above is that certified copies of the originals are admissible as secondary evidence. 8. Relying upon the said judgements, Shri.Gorwadkar submitted that once certified copies are produced, the Court had to accept them as secondary evidence. 9. On behalf of the contesting respondents :16: i.e. the original contesting defendants to the said suit, Shri.V.B.Naik, the learned counsel submitted that the application made by the petitioners-plaintiffs by filing an affidavit Exhibit-204 was not maintainable in view of the orders passed on Exhibit-179 and Exhibit-185. The orders passed on the said exhibits, according to Shri.Naik operate as res-judicata as they have become final in the absence of any challenge to them. Shri.Naik submitted that merely because certified copies were produced the same per se were not admissible as evidence unless the procedure prescribed for the same was satisfied. 10. Shri.Naik further submitted that to lead secondary evidence, a foundation has to be laid in the pleadings and the same must be at the earliest opportunity. In the instant case, admittedly, there is no whisper in the plaint about the loss of the said documents or as to in whose custody they were. It was further :17: submitted by Shri.Naik that in the absence of any pleadings, no evidence can be allowed to be led. Shri.Naik drew my attention to the affidavit of examination-in-chief of the plaintiff No.1(a) in which affidavit also, there is no mention about the loss of the said documents or as to why the certified copies were produced vide Exhibit-177. Hence, according to Shri.Naik, unless permitted by the Court, the petitioners i.e. the plaintiffs herein cannot file additional affidavit of evidence as the same amounts to recalling of a witness. Shri.Naik relying upon the sequence of events submitted that the case made out by the petitioners does not deserve acceptance. Shri.Naik submitted that the instant suit was filed in the year 1996 and the plaintiff No.1(a) as per his own deposition became aware of the loss of the said documents in the year 1985 and still there is no whisper in the plaint filed in the year 1996. Shri.Naik further submitted that it is nowhere stated by the plaintiffs as to :18: what efforts were made by them to trace the documents and as to whose custody they were in. 11. Shri.Naik submitted that the evidence of the plaintiff, who is a practicing Advocate and the evidence of Shri.S.L.Gaikwad from the Sub Registrar office does not inspire confidence and, therefore, the Trial Court, according to Shri.Naik has rightly rejected the application of the plaintiffs for leading secondary evidence of the original documents. Shri.Naik relying upon the judgement reported in AIR 1966 S.C. Pg.1457 AIR 1966 S.C. Pg.1457 AIR 1966 S.C. Pg.1457 submitted that a foundation has to be laid for leading secondary evidence and unless such foundation is laid, it is impermissible for a party to be permitted to lead secondary evidence. Shri.Naik relied upon paragraph 8 of the said judgement. The said paragraph is reproduced hereunder : - "(8): As there is no document recording the grant of inam and its conditions, one has to turn to a number of documents from :19: which the High court and the court below have drawn opposite conclusions regarding what was included in the inams. There is, of course, no dispute that the inam must have comprised the melwaram at least. That must have been done in any event. Thus the sole question is whether it comprised the kudiwaram also. In reaching the conclusion that both warams were included, the District Judge took into consideration certified copies of certain leases from the record of an old case O.S.No.124 of 1944 of the Court of Subordinate Judge, madurai. These documents are Exts. B-4, 5, 6 and A-68, 69 and 77. Ex.B-4 is a karalnama (agreement) executed for the fasli years 1348 and 1349 by which the lessees undertook to hand over 1/3 share of the produce as melwaram and to retain 2/3 share as kudiwaram from the lands leased out of Keelapappapathu. Ex.B-5 is another lease for cultivating the whole of Keelapappapathu nanja (wet) lands. Ex.B-6 is a muchilika in respect of nanja lands in Keelapappapathu by which lessee undertook to pay half produce as melwaram and to retain the other half as kudiwaram. These documents undoubtedly would have thrown light upon the matter but they were not admissible because they were only copies. The originals were not produced at any time nor was any foundation laid for the establishment of the right to give secondary evidence. The High Court rejected them and it was plainly right in so deciding. If we leave these documents out of consideration, the other documents do not show that the inam comprised the kudiwaram also. Ex. A-3 is an extract from the village account of Managiri :20: village, Manlakulam Taluk relating to inams. It is for the years 1802-1803. The lands are sufficiently identified with the suit lands by the area. The lands were described as Stalathar inam Porupa manyam, conducted for Meenakshi Sunderashwaral temple. the poruppu being a low or quit rent according to the 5th Report, p.765 we get an indication as to what the inams comprise. The account shows that from the total assessment of 96 Pons O fanoms and 15 thuddsu, the poruppu was only 19 Pons. 2 fanoms and 3 thuddsu. Again in Ex.A-5, which is an extract of the Inam Account of Manigiri village of 1217 fasli i.e. five years later, the heading was Inam Enquiry Mauje (village) Manigiri. Now the word Mauje is used in respect of villages in which there are cultivators owning cultivable lands. This has been so held for a long time. (See Venkata Sastrulu v. Devi Sitaramadu, ILR 38 Mad 981: (AIR 1015 Mad 727), per Sadasiva Iyer, J. and Seethayya v. Subramanya Somayajulu, ILR 52 Mad 453 at p.463 : (AIR 1929 PC 115 at p.118). In the remarks column, the poruppu amount payable is stated and it almost corresponds to the poruppu earlier mentioned, and there is a further mention of the service of the temple. The pattas exhibits A-6 to A-8 of the years 1856, 1857 and 1860 also speak of sourandayam manibam poruppu which is revenue payable in money at a concession. The inamdars did not themselves claim in the Inam enquiry anything more than the melwaram rights and in Exts.A-10 and A-11, which are the Inam statements (1862) and the Inam Fair Register dated September 25, 1863, the Stalathar Poruppu manibam is again mentioned and the Inams were :21: registered in the names of Bhattars as the Sthaniks of the temple." 12. Shri.Naik also relied upon the judgement reported in AIR 1959 A.P. Pg.568 in the case of AIR 1959 A.P. Pg.568 in the case of AIR 1959 A.P. Pg.568 in the case of Smt.Bobba Suramma v/s. Smt.Peddireddi Smt.Bobba Suramma v/s. Smt.Peddireddi Smt.Bobba Suramma v/s. Smt.Peddireddi Chandramma, Chandramma, Chandramma, which interalia held that credible evidence has to be laid for the loss of the original. Paragraphs 19 and 20 of the said judgement are relevant and are reproduced hereunder : - "(19): There is another obstacle to the appellant taking advantage of the provisions of Section 65 of the Indian Evidence Act. Secondary evidence can be let in under Section 65 only in certain circumstances one of which is that when the original has been destroyed or lost. The case of the appellant is that it was lost. In support of that case, we have only the evidence of D.W.3. He does not really advance the case of the appellant in any manner on that issue. This is what he deposed in his chief examination :- "Inukonda Devarakonda Suramma executed a sale-deed in favour of Padmanabham which was used in the prior litigation. It is not be found now, it seems to have been lost. I do not know what :22: happened to it." In the cross examination, he admitted that he had never seen the sale deed but that one Ammanna told him that he had seen it. Ammanna, although he is alive, was not examined by the appellant. The statement of D.W.3 that the sale deed executed by Devarakonda Suramma was used in a prior litigation does not seem to be entitled to much weight, in view of his admission that it was Ammanna that was looking into the affairs of Atchamma, the adoptive mother of the fourth defendant, in the prior litigation, namely, O.S.No.210 of 1941. Could this be regarded as sufficient material on which the case of destruction or loss of a document could be based? For one thing, D.W.3 does not know anything about that document. He was only told by someone that he had seen it. How then could he prove its loss the existence of which he had no knowledge? Moreover, he does not definitely speak to the loss of the document. All that he stated was that it was not found by him and therefore it seemed to have been lost. There is not even a whisper of his having conducted a search for it and was unable to trace it. The recitals in the written statement in that regard are significant. This is what is stated in paragraph 4 of the written statement :- "The whole record relating to the said land was lost at the time of the death of this defendant’s adoptive father and mother. Now, after some investigation and with :23: great difficulty the certified copies were obtained and being filed." At the outset, it should be remembered that no copy of the alleged sale deed was filed before the Court. Therefore, the loss of the record referred to in the written statement could have reference only to documents for which copies were filed into Court. Again, the statement is as vague as it could be. It is not shown as to when exactly the records were lost. It could not be ignored in this contest that there was a long interval between the death of the adoptive father and that of the adoptive mother of the fourth defendant. (20) : In order to claim the benefits of section 65 of the Indian Evidence Act, there should be credible evidence of the loss of the original. As pointed out by one of us in Ananta Raghuram v. Raja Bommadevara, AIR 1958 Andh Pra 418 at p.421 (Srinivasachari, J.) "There must be sufficient proof of the search for the original to render secondary evidence admissible. It must be established that the party has exhausted all the sources and means in the search of the document which were available to him." There is utter paucity of evidence on record in this case. As already stated, excepting the statement of D.W.3 extracted above, there is nothing else in the direction of the proof of the loss of :24: the document. In this connection, we cannot also overlook the fact that the parties had preserved Ex.B-1 of the year 1915, and there is no satisfactory explanation as to how this document was missing and under what circumstances it was lost. The only reasonable inference that could be drawn is that there was no such document, or, even if one existed, it was not produced, probably for the reason that it might be unfavourable to the party. The District Munsif had contended himself by saying that evidently this document was lost. This is again based on a surmise that there must have been some document executed in 1934 and, if it was not produced, it must have been destroyed or lost. This in our opinion, is not a sustainable conclusion. Both the Courts below had not devoted any attention to this aspect of the case, obviously for the reason that they were not extending the benefits of Section 53-A to the contesting defendant." 13. Shri.Naik also relied upon the judgement reported in AIR 1966 Culcutta Page 13 in the case AIR 1966 Culcutta Page 13 in the case AIR 1966 Culcutta Page 13 in