SCA/995/1999 1/19 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 995 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= PARSI E PATRAWALA & 1 - Petitioner(s) Versus JAHANGIR D KASAD & 2 - Respondent(s) ========================================================= Appearance : MRS KETTY A MEHTA for Petitioner(s) : 1 - 2. MS Pahwa for M/s THAKKAR ASSOC. for Respondent(s) : 1 - 2. MS ML SHAH, AGP for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 29/09/2006 ORAL JUDGMENT 1. The petitioners herein challenge an order dated 31-12-1998 passed by the Joint Charity SCA/995/1999 2/19 JUDGMENT Commissioner, Rajkot which order was passed below exh.22 in appeal no.3/98. 2. Brief facts leading to the present petition are as follows : 2.1 The petitioners herein are opposing the attempt on part of one Rajkot Jarthosti Anjuman trust represented by respondent no.1 herein in seeking to establish the ownership rights of the trust in one immovable property known as Damri Bag situated at Rajkot. The case of the petitioners appears to be that the said property was never handed over to the said trust along with ownership rights and that owners of the property only intended to create limited right of management of the property in question in favour of the trust. In short, it is the contention of the petitioners that the said property was to be used and applied by the trust as provided for by its owners who had donated the property with certain specific purposes. SCA/995/1999 3/19 JUDGMENT 2.2 For the purpose of this petition, it is not necessary to give full details of proceedings between the parties. Suffice it to note that in appeal no. 3/98, filed by the petitioners before the Joint Charity Commissioner, the petitioners desired to produce on record a document purported to be donating the property by a resolution dated 1-12-1935. 2.3 The petitioner initially served a notice on the trust calling upon the trust to produce original of the said resolution dated 1- 12-1935. In response to the notice issued, on behalf of the trust, an affidavit came to be filed on 18-6-1998. In the said affidavit it was stated inter-alia that upon verifying the trust records available with the trustees, there is no record available of the so called special general meeting stated to have been held on 1- 12-1935. It was further stated that similarly upon verification of the said record, no record is presently available with the trust regarding the property “Manekji Pestanji Damri Bag” said SCA/995/1999 4/19 JUDGMENT to have been handed over to Rajkot Jarthosti Anjuman trust. 2.4 Upon receipt of the said affidavit on behalf of the trust, petitioners filed an application before the Joint Charity Commissioner at exh.22 and requested that opponents have filed an affidavit and stated that original record of the special general meeting dated 1-12-1935 is not available. However, the appellants (i.e. the petitioners herein) have along with the appeal memo produced a xerox copy of the resolution adopted in the said special general meeting dated 1-12-1935. Considering this fact that original record is not available, the xerox can be produced by the appellants to be admitted as secondary evidence as provided in Section 65 of the Indian Evidence Act(here-in-after referred to as “the said Act”). 2.5 Joint Charity Commissioner however, by his impugned order dated 31-12-1998 rejected the SCA/995/1999 5/19 JUDGMENT application of the petitioners. In the said order, it was observed that when the appellants are producing the documents as secondary evidence, they have been completely silent about from where did the document arrive, how did they come in possession of the document, whether any signatory of the document is alive or not. No affidavit has been filed suggesting whether they have any evidence regarding this document. Even in the application exh-22, they have not disclosed as to from where did they receive the document. It is only stated that the document should be permitted to be admitted as secondary evidence and exhibited accordingly. It was observed that the same has no evidentiary value because it is not secondary evidence as per Section 63 of the Indian Evidence Act and only if it is believed to be secondary evidence under the said Act, then the question of permitting it to be exhibited in evidence as per Section 65 of the Indian Evidence Act would arise. 3. It is on this basis that the parties have based SCA/995/1999 6/19 JUDGMENT their contentions. 4. Learned advocate Ms. Mehta appearing for the petitioners submitted that the order passed by the Joint Charity Commissioner is illegal and unlawful; that the document in question ought to have been permitted to be produced and exhibited as secondary evidence. 4.1 She submitted that the opponents had clearly stated that document is lost in which case xerox copy of such document would become admissible in evidence as per the provisions contained in Section 65(c) of the Indian Evidence Act. She further contended that Joint Charity Commissioner gravely erred in rejecting the application of the petitioner; that in view of the clear statutory provisions, it was incumbent on part of the Joint Charity Commissioner to permit production of the documents as secondary evidence, he has therefore, committed jurisdictional error. This Court should therefore, exercise writ SCA/995/1999 7/19 JUDGMENT jurisdiction and correct the error. 5. In support of her contentions, learned advocate Ms. Mehta placed reliance on the following decisions : 5.1 Decision in the case of Jogu v. Smt. Bhiki reported in AIR 1983 Himachal Pradesh 13 was cited wherein learned Single Judge of Himachal Pradesh High Court observed that as plaintiff was in possession of the document, his mere statement that the document has been lost or is untraceable should be deemed to be sufficient and simply because the plaintiff did not lodge any report about its loss by theft does not mean that the document has not been lost or destroyed. 5.2 Reliance was placed on the decision of learned Single Judge of this Court in the case of Arunkumar Pritamlal and another v. Ramanlal Bhagubahi reported in 1975 GLR 61, wherein learned Single Judge relying on the observations SCA/995/1999 8/19 JUDGMENT made by Hon'ble Supreme Court in the case of Bibi Aisha v. Bihar S.S.M. Avacaf reported in AIR 1969 Supreme Court 253 observed that in case of clauses (a),(c) and (d) of section 65 of the Indian Evidence Act any secondary evidence is admissible irrespective of the provisions of section 63 or clause(f) of section 65 of the Act. 6. On the other hand, learned advocate Ms. Pahwa appearing for respondent no.1 and 2 opposed the petition. She submitted that Joint Charity Commissioner committed no error in rejecting the application of the petitioners. She contended that the application of the petitioners for permission to produce the document as secondary evidence did not disclose any material particulars. She contended that the petitioners had to lay a foundation before such permission could be granted. She further submitted that the respondents never admitted the existence of the document nor did they state in their affidavit that the same has been lost. The respondents SCA/995/1999 9/19 JUDGMENT clearly stated that the so called document of the so called meeting is not available on record. This clearly means that existence of document was not admitted. 6.1 She further submitted in order to have benefits of provisions of Section 65(c) of the Indian Evidence Act, the petitioners first have to establish the ingredients of Section 63 of the said Act. Pointing out the provisions contained in Section 63(2) of the Indian Evidence Act, she submitted that only copies made from the original by mechanical processes which ensures accuracy of the copy and copies compared with such copies can be accepted as secondary evidence under the said Clause. She submitted that in the present case, reliability and accuracy of the xerox copies are not established. No statement, averment, affidavit or any other form of evidence is produced to lay a foundation for establishing accuracy and authencity of the document. SCA/995/1999 10/19 JUDGMENT 7. In support of her contentions, reliance was placed on several decisions which are noted below. 7.1 Reliance was placed on the decision of Hon'ble Supreme Court in the case of State of Rajasthan and others v. Khemraj and others reported in AIR 2000 Supreme Court 1759 wherein Hon'ble Supreme Court upheld the decision of High Court in refusing to permit the acceptance of documents as secondary evidence under section 65 of the Indian Evidence Act, since the application seeking such permission was not supported by any affidavit and the averments contained in the application were vague. 7.2 Reliance was placed on the decision of learned Single Judge of this Court in the case of Unilec Engineering Co. & anr. v. Union of India reported in 1998(1)GLR 519, wherein observing that document is required to be discarded since nothing has been produced to show that it has been copied from the original, SCA/995/1999 11/19 JUDGMENT it was further observed that learned Judge exhibited the documents though they have not come from the proper custody and though original documents have not been produced. In absence of original documents, no foundation can be laid for admissibility of secondary evidence. 7.3 Reliance was placed on the decision of Kalidas Chhaganlal Rana v. Babaldas Bapubhai Rana & anr. reported in 1993(2) GLR 1645, wherein learned Single Judge of this Court observed that Section 65 of the Indian Evidence Act is clear and it is not necessary to refer to any binding ruling on the proposition that no secondary evidence could have been permitted to be led without laying any foundation therefor, as provided under Section 65 of the Indian Evidence Act. 7.4 Decision in the case of Dr. Gurmukh Ram Madan v. Bhagwan Das Madan reported in (1998) 7 Supreme Court Cases 367 was also cited wherein, the Hon'ble Supreme Court observed that the SCA/995/1999 12/19 JUDGMENT document not being a public document could not have been let in evidence except after explanation as to nonavailability of original in an appropriate manner. 7.5 Decision in the case of Ashok Dulichand v. Madhavlal Dube and another reported in AIR 1975 Supreme Court 1748 was cited wherein, the Hon'ble Supreme Court finding that the appellant failed to explain as to what were the circumstances under which Photostat copy was prepared and who was in possession of the original document at the time its photograph was taken and also finding that Photostat copy appeared not above suspicion, upheld the decision of High Court in not exhibiting the same. 8. Section 62 if the Evidence Act pertains to primary evidence. It provides that primary evidence means the document itself produced for inspection of the Court. SCA/995/1999 13/19 JUDGMENT 8.1 Section 63 of the Indian Evidence Act pertains to secondary evidence and reads as follows : “63. Secondary evidence.- Secondary evidence means and includes - (1) certified copies given under the provisions hereinafter contained; (2) copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies; (3) copies made from or compared with the original; (4) counterparts of documents as against the parties who did not execute them; (5) oral accounts of the contents of a document given by some person who has himself seen it.” 8.2 Section 65 of the Indian Evidence Act pertains to cases in which secondary evidence relating to documents may be given. Relevant provisions of Section 65 for the purpose of this petition reads as follows : “65(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; 65(c)- when the original has been destroyed or lost, or when the party offering evidence ot its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;” SCA/995/1999 14/19 JUDGMENT 9. It is the case of the petitioners that xerox copy of the so called resolution is a copy made from original by mechanical process and is therefore, secondary evidence under Section 63(2) of the Indian Evidence Act. It is further the case of the petitioners that since the respondents admit that the original record of the meeting dated 1-12-1935 has been lost or destroyed, in terms of clause(3) of Section 65 of the Indian Evidence Act, xerox copy produced by the petitioners of the resolution passed in the said Special General Meeting, becomes admissible in evidence. 10.From the affidavit filed by respondents in response to the application for recovery filed by the petitioners before the Joint Charity Commissioner, it can be seen that the respondents did not admit the existence of document pertaining to the resolution said to have been adopted by the alleged Special General Meeting of 1-12-1935. In the affidavit, the SCA/995/1999 15/19 JUDGMENT respondents did not admit holding of the so called meeting dated 1-12-1935 or any resolution having been passed on the said date. They only stated that as per the records, no record of the said meeting or any resolution having been passed therein are available. It would therefore, not be accurate to state that respondents admitted the existence of the document in question, but stated that same has been lost or destroyed. In view of this, the petitioners had to lay a foundation for establishing the accuracy of the xerox copy as compared with the original. Under Sub-section(2) of Section 63 of the Indian Evidence Act, only such of the copies made from the original by mechanical processes which in themselves ensure the accuracy of the copies can be treated as secondary evidence. This being the position, the petitioners could not have, fallen back on provisions contained in Clause(c) of Section 65 of the Indian Evidence Act and without disclosing necessary particulars and laying a foundation for exhibiting in evidence xerox copy SCA/995/1999 16/19 JUDGMENT of the original, urged the authority to take such evidence on record. 11.Joint Charity Commissioner was perfectly justified in noting that the petitioners in their application have given no particulars about the existence of the original document, about the manner in which the petitioners came to be in possession of the xerox, in what manner how and when the xerox was prepared. The petitioners also failed to disclose any details about the existence of any of the signatories of the document. 12.Considering all these aspects of the matter, Joint Charity Commissioner in my view was perfectly justified in concluding that no foundation was laid to permit the petitioners to exhibit the document in question by way of secondary evidence. 13.Learned advocate Mrs. Mehta for the petitioners sought to rely on clause(a) of Section 65 of the SCA/995/1999 17/19 JUDGMENT Evidence Act in support of her contention. I am afraid, case of the petitioners does not fall in the said clause also. In this case original is not shown to be in possession or power of the respondents. In fact respondents as noted above do not even admit existence of the document. The petitioners have made no attempt to establish existence of the document and that the same is in possession of the respondents. In that view of the matter, reliance placed on section 65(a) of the Evidence Act is not well founded. 14.Learned advocate Mrs. Mehta submitted that in absence of such a document respondents and in particular the trust would have no claim to ownership of the property. I refrain from making any observations in this regard since this is not a question directly before this Court in this petition. What would be the effect of non exhibiting the document in question and what would be the ultimate outcome of the pending proceedings before the Joint Charity Commissioner in absence of such document is SCA/995/1999 18/19 JUDGMENT neither possible nor proper for me to comment upon. Suffice it to say that I do not find any error in the order passed by the Joint Charity Commissioner limited to the extent of non exhibiting the document in evidence. 15.Learned advocate Ms. Mehta submitted that if not directly admitted in evidence by accepting the document, the petitioners may be permitted to lead oral evidence regarding the same before the Joint Charity Commissioner. I find this question does not arise in this petition and it is therefore, not necessary for me to decide this issue. Since this issue is not decided in this petition, it is always open for the authorities to take a view in this regard if such a question arises. 16.In the result, subject to above observations, petition fails and is rejected. Rule is discharged with no order as to costs. (Akil Kureshi, J.) (raghu) SCA/995/1999 19/19 JUDGMENT