C.R. No.730 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No.730 of 2010 Date of Decision: 10.02.2010 M/s Dhamija Glass and Plywood Company and another .……petitioners Versus M/s Kit Ply Industries Ltd. ……Respondent Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. R. S. Mamli, Advocate for the petitioners. L. N. MITTAL, J (ORAL) Defendants have filed the instant revision petition under Article 227 of the Constitution of India assailing order dated 08.01.2010 (Annexure P-1) passed by learned Additional Civil Judge (Senior Division), Jagadhari whereby application moved by plaintiff- respondent for secondary evidence of documents has been allowed. Respondent filed suit against the petitioners for recovery of money. The said suit was decreed vide ex parte judgment and decree dated 04.03.2002 after recording ex parte evidence. However, ex parte judgment and decree dated 04.03.2002 were set aside. The plaintiff moved application (Annexure P-2) for leading secondary evidence of documents alleging that the original documents have been misplaced by some ex-employee of the plaintiff-company during shifting of office and the originals are not traceable. Photocopies of the original documents were exhibited when ex parte evidence was led earlier. I have heard learned counsel for the petitioners and C.R. No.730 of 2010 -2- perused the case file. Learned counsel for the petitioners at the outset contended that photostat copies of the original documents are not admissible in secondary evidence. Reliance in support of this contention has been placed on a judgment of Hon'ble Supreme Court in the case of Smt. J. Yashoda versus Smt. K. Shobha Rani, 2007 (2) RCR (Civil) 840. The contention is based on head note 'A' of the journal. However, the said head note is misleading. No such proposition of law has been laid down by Hon'ble Apex Court in this judgment and even on pointed inquiry, learned counsel for the petitioners is unable to refer to any observation of Hon'ble Supreme Court laying down any such proposition of law. On the other hand, in that case, the conditions for entitling a party to lead secondary evidence were not satisfied and for this reason, prayer for leading secondary evidence was rejected in that case. Learned counsel for the petitioners also relied on a judgment of Delhi High Court in the case of M/s Arati Bhargava versus Kavi Kumar Bhargava (Deceased) through L.Rs, 1999(2) Cur.L.J. 488 in support of his aforesaid contention. However, again head note 'B' of the journal on which this contention is based, is misleading. In paragraph 8 of the judgment, it has been held that photocopy of a copy is not admissible, but it has not been held that photocopy of the original is not admissible in secondary evidence. On principle, photocopy is prepared by mechanical process from the original document, ensuring accuracy of the copy and, therefore, photocopy of the original document is certainly C.R. No.730 of 2010 -3- admissible as secondary evidence falling within the ambit of Section 63(2) of the Evidence Act. Learned counsel for the petitioners concedes that when ex parte evidence was led by the plaintiff, concerned witness had brought the original documents and proved photostat copies thereof. Consequently, it stands established that original documents were in existence. It is now stated on affidavit that the original documents are not traceable. Therefore, sufficient ground for permitting the plaintiff to lead secondary evidence of documents has been made out . Learned counsel for the petitioners contended that the witness examined in ex-parte evidence had stated that the office of the plaintiff-company had already shifted to Chandigarh and he had come to the Court from Chandigarh office, but in application (Annexure P-2) moved for secondary evidence, it has been stated that the file containing the documents has been misplaced during shifting of the office. However, this apparent discrepancy would not make any difference because the fact remains that the original documents were in existence and were brought by the witness in ex parte evidence. The said documents are now stated to be not traceable as affirmed on oath. The plaintiff thus made out a sufficient ground for permitting it to lead secondary evidence. There is no illegality in the impugned order of the trial Court. The revision petition is without any merit and is accordingly dismissed in limine. ( L. N. MITTAL ) JUDGE 10.02.2010 A. Kaundal