C.R. No. 4586 of 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 4586 of 2011(O&M) Date of Decision: 16.11.2011 Santokh Singh and others ....Petitioners. Versus Buta Singh and another ...Respondents. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. Sanjiv Gupta, Advocate for the petitioners. Mr. Madan Gupta, Advocate for the respondents. AJAY KUMAR MITTAL, J. 1. The plaintiffs-petitioners have invoked the revisional jurisdiction of this Court impugning the order dated 3.6.2011 passed by the trial court whereby an application filed by them for leading secondary evidence to prove the registered sale deed dated 3.6.1978 which was executed by Buta Singh in favour of the plaintiffs, had been declined. 2. Briefly stated, the facts necessary for adjudication as narrated in the present petition are that the plaintiffs-petitioners filed a suit for declaration with a consequential relief of permanent injunction to the effect that they have purchased the land comprised in Khewat No. 36 min Khatoni No. 105 min, Khasra No. 801(8-0) vide sale deed bearing No. 2520/1 dated 13.7.1979 situated at Village Udarsi, Tehsil Thanesar, District Kurukshetra and the subsequent sale deed dated C.R. No. 4586 of 2011 -2- 18.4.2006 by defendant No.1 in favour of defendant No.2 be declared null and void. Defendant No.1 had also executed a registered sale deed bearing No. 1167/1 dated 3.6.1978 regarding land measuring 8 kanals 0 marlas comprised in Khewat No. 33 min, Khatoni No. 96, Khasra No. 806(8-0) situated within the revenue estate of Village Udarsi, Tehsil Thanesar, District Kurukshetra. The sale deed was handed over by the petitioners to the Patwari for the sanction of mutation which was lost by the Patwari and could not be traced. The certified copy of the sale deed was on record of the trial court and in order to prove the said sale deed, the petitioners moved an application for leading secondary evidence. The said application was contested by the defendants by filing reply. The trial court vide order dated 3.6.2011 dismissed the application for leading secondary evidence filed by the plaintiffs-petitioners and this gave rise to the filing of the present petition under Article 227 of the Constitution of India. 3. I have heard learned counsel for the parties and perused the record with their assistance. 4. Learned counsel for the petitioners submitted that it was essential for the just decision of the case that the evidence had to be led to prove the execution of the sale deed dated 3.6.1978 executed by Buta Singh in favour of the petitioners as the claim is based on the aforesaid sale deed. As per the averments in the plaint, in view of the said sale deed, the subsequent sale deed dated 18.4.2006 executed by Buta Singh in favour of defendant No.2 when he did not remain owner thereof could not have been executed. He submitted that the sale deed dated 3.6.1978 was not available as the same had been lost and in C.R. No. 4586 of 2011 -3- such a situation, under Section 65 of the Indian Evidence Act (in short “the Act”), the para meters laid down therein were fulfilled and certified copy of the sale deed dated 3.6.1978 which has already been placed on the record of the trial court was required to be proved by way of secondary evidence. Learned counsel further submitted that in view of Sections 74, 75 and 76 of the Act, the certified copy of a registered document was admissible in evidence. Moreover, it was a public document. He on the strength of the judgments in Banarsi Dass v. Om Parkash and others, 2005(2) PLR 358, Gajjan Singh v. Virsa Singh and others, 2007(3) RCR (Civil) 3 and Ashok Kumar Sachdeva v. Harish Malik, 2007(4) RCR (Civil) 311 submitted that the trial court had erred in declining the application for leading secondary evidence. 5. On the other hand, learned counsel for the respondents asserted that the order passed by the trial court was just and legal and did not warrant any interference by this Court. He supported the order passed by the trial court. 6. After careful consideration of the respective submissions of the learned counsel for the parties, I find that the trial court had erred in not allowing secondary evidence to be led in respect of registered sale deed dated 3.6.1978. Section 65 of the Act reads thus:- “65. 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 C.R. No. 4586 of 2011 -4- 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; (b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest; (c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time; (d) when the original is of such a nature as not to be easily movable; (e) when the original is a public document within the meaning of Section 74; (f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence; (g) when the originals consists of numerous accounts or other documents which cannot conveniently be examined in Court, and the C.R. No. 4586 of 2011 -5- fact to be proved is the general result of the whole collection. In cases (a), (c) and (d), any secondary evidence of the contents of the documents is admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.” 7. Analysing Section 65 of the Act, this Court in Balwinder Kaur and another v. Santosh Singh and others (Civil Revision No. 48 of 2011 decided on 20.9.2011) had noticed as under:- “8. This section enumerates seven cases in which secondary evidence is admissible. According to this Section, cases falling in clauses (a), (c) & (d) any secondary evidence of the contents of the documents is admissible. However, written admission is admissible in respect of case coming under clause (b). In cases of applicability of clauses (e) & (f), certified copies of the document alone are admissible as secondary evidence. So far as clause (g) is C.R. No. 4586 of 2011 -6- concerned, secondary evidence may be given by any person who has examined them or who is skilled in the examination of such document. Secondary evidence cannot be permitted without the non- production of the original being first accounted for in such a manner so that the case may fall within one or more of the situation enumerated therein.” 8. Under similar circumstances, this Court while interpreting the said provision in Ashok Kumar Sachdeva's case (supra), had allowed the leading of secondary evidence. It was recorded as under:- “One of the circumstance under clause (c) is loss of the original document. The copy of the document is already on record. The petitioner specifically pleaded that the original document has been lost. The circumstances under which it was lost and other related factors are all questions which can only be established once the applicant is allowed to lead secondary evidence in respect of the document in question.” 9. Further, it was observed that:- “After hearing learned counsel for the parties, I am of the view that to prove a document by way of primary or secondary evidence is a rule of evidence. Whether the party seeking leave of the Court to lead secondary evidence ultimately succeeds in proving the document or not is a question of fact and C.R. No. 4586 of 2011 -7- depends upon evidence. Petitioner has pleaded in the application the loss of original document. Under what circumstances document was lost is a question of fact and evidence. It is settled rule of pleadings that a party must disclose material facts and need not plead evidence. In the instant case material fact is loss of document and circumstances leading to loss is a question of evidence. This question can only be decided after providing opportunity to the party concerned to lead secondary evidence. To grant leave to lead secondary evidence does not mean the document is admitted in evidence nor it is a finding of the existence of any of the conditions indicated in Section 65 of the Evidence Act. It only amounts to holding an enquiry regarding existence of document and its loss under some circumstances. Failure or success to prove the existence of document or its loss cannot be pre-determined that too without providing opportunity. Whether it is proved or not, is to be seen after the leave is granted and the material/evidence produced, is evaluated.” 10. The certified copy of the sale deed dated 3.6.1978 has already been produced on the record of the trial court along with the plaint. Under the facts and circumstances of the present case, it cannot be said that the same is not essential for the just decision of the case. The plaintiffs are, thus, entitled to lead secondary evidence in respect of C.R. No. 4586 of 2011 -8- the registered document, i.e. sale deed dated 3.6.1978. 11. In view of the above, the present petition is allowed and the order dated 3.6.2011 passed by the trial court is set aside. The application for leading secondary application stands accepted. November 16, 2011 (AJAY KUMAR MITTAL) gbs JUDGE