Full Judgment Text
$~A-31
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 24.8.2016
+ CM(M) 789/2016 & CM Nos.29916-19/2016
PAWAN KATARIA ..... Petitioners
Through Mr.Amit Anand Tiwari and
Mr.Abhinav Raghuvanshi, Advocates
versus
ARDEEP KUMAR BATTA & ANR. ..... Respondents
Through Mr.Rajeev, Advocate
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
1. By the present petition under Article 227 of the Constitution of India
the petitioner seeks to impugn the order dated 27.5.2016 by which
application filed by the the petitioner under section 63 of the Indian
Evidence Act, 1872 seeking to lead secondary evidence was dismissed.
2. The the petitioner has filed a suit for specific performance of the
contract dated 5.3.1997 alongwith permanent and mandatory injunction. The
case of the petitioner is that the flat was purchased but the documents were
executed in the name of respondent No.1 for the reason that both were
relatives and were having business relations and further respondent No.1 had
undertaken to re-transfer the said flat in the name of Smt.Poonam late wife
of the petitioner. It was further stated that while Smt.Poonam was ill the
respondent No.1 had stolen the papers i.e. title documents during his visit to
the house of the petitioner.
3. It is in the above background that the petitioner has filed the present
CM(M)789/2016 Page 1 of 8
application under section 63 of the Indian Evidence Act. It is stated in the
application that a notice under Order 12 Rule 8 CPC and section 66 of the
Indian Evidence Act has been served on the respondent No.1. The
respondent No.1 has not replied and hence it is prayed that the the petitioner
may be allowed to lead secondary evidence to proved his case.
4. By the impugned order the trial court came to a conclusion that the
court is of the opinion that the the petitioner has miserably failed to prima
facie satisfy the court that the documents of which secondary evidence has
been sought to be produced, are really in power and possession of
respondents. Hence, the application was dismissed.
5. I have heard learned counsel for the parties.
6. Learned counsel appearing for the the petitioner has relied upon
Mangat Ram vs. Ashok Kumar Sharma, (2010) 168 DLT 634 to support
his contention that there was enough ground to allow the application.
Learned counsel appearing for the respondent has relied upon U.Sree vs.
U.Srinivas, (2013) 2 SCC 114 and H.Siddiqui (dead) by LRs. Vs.
A.Ramalingam, AIR 2011 SC 1492 to contend that under the scheme of
things of the Indian Evidence Act the petitioner has to first lay the
foundation to justify leading of secondary evidence and then only the
question of allowing the application under section 63 or 65 would arise.
7. Section 63, 64 and 65 of the Indian Evidence Act read as follows:-
63. Secondary evidence
Secondary evidence means and includes—
(1) certified copies given under the provisions hereinafter
contained;
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(2) Copies made from the original by mechanical processes
which in themselves ensure 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 documents given by
some person who has himself seen it.
64. Proof of documents by primary evidence
Documents must be proved by primary evidence except in the cases
hereinafter mentioned
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 documents 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;
(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;
CM(M)789/2016 Page 3 of 8
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is public document within the meaning of
section 74;
(f) when the original is a document of which a certified copy is
40
permitted by this Act, or by any other law in force in [India] to be
given in evidence ;
(g) when the originals consist of numerous accounts or other
documents which cannot conveniently be examined in court and the
fact to be proved it the general result of the whole collection.
In cases (a), (c) and (d), any secondary evidence of the contents of
the document 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, 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.
8. This Court in the case of Prem Chandra Jain vs. Shri Sri Ram
(2009) ILR 7 DEL 605 held that it is not for the party to apply with an
application under section 65 of the Evidence Act for permission to lead
secondary evidence. The parties who seek to lead secondary evidence have
to lay the foundation of the background to justify leading secondary
evidence for which no permission is required. This court held as follows:-
“4. It is only after such evidence has been led can the court
form an opinion whether the circumstances/situation in
which it is permissible to lead secondary evidence exist or
not. For instance, whether a document has been lost or
destroyed is a question of fact. It is only after the person
claiming so has been cross examined, can a decision be
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taken as to the existence and loss or destruction of the
original.
5. The court, on an application seeking permission to lead
secondary evidence, even if setting out reasons as contained
in either of the Clauses of Section 65, cannot take a decision
on the correctness of the reasons. The application thus
serves no purpose except delaying the proceedings. It is
however often found that the courts allow or disallow the
applications, without giving an opportunity to the parties for
laying a foundation for reception or rejection of secondary
evidence. Such procedure is impermissible in law. Factual
controversies cannot be adjudicated on applications. That is
however not to be understood as allowing a mini-trial on this
aspect. The party seeking to prove document by secondary
evidence is to lead evidence of the existence of
circumstances/situations in which secondary evidence is
permissible, during leading its evidence, whether by way of
examination of witnesses or cross examination of opponents
witnesses, in the suit/other proceeding itself. It will be
decided at the stage of disposal of suit only, whether case for
leading secondary evidence has been made out or not and if
so, whether document stands proved by secondary evidence.
9. The Supreme Court in H.Siddiqui (dead) by LRs. Vs. A.Ramalingam
(supra) held as follows:-
“10. Provisions of Section 65 of the Act 1872 provide for
permitting the parties to adduce secondary evidence. However,
such a course is subject to a large number of limitations. In a
case where original documents are not produced at any time,
nor, any factual foundation has been led for giving secondary
evidence, it is not permissible for the court to allow a party to
adduce secondary evidence. Thus, secondary evidence relating
to the contents of a document is inadmissible, until the non
production of the original is accounted for, so as to bring it
within one or other of the cases provided for in the section.
The secondary evidence must be authenticated by foundational
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evidence that the alleged copy is in fact a true copy of the
original. Mere admission of a document in evidence does not
amount to its proof. Therefore, the documentary evidence is
required to be proved in accordance with law. The court has an
obligation to decide the question of admissibility of a
document in secondary evidence before making endorsement
thereon. (Vide: The Roman Catholilc Mission and Anr. v. The
State of Madras and Anr.: AIR 1966 SC 1457; State of
Rajasthan and Ors. v. Khemraj and Ors. AIR 2000 SC
1759; Life Insurance Corporation of India and Anr. v. Ram Pal
Singh Bisen : (2010) 4 SCC 491; and M. Chandra v. M.
Thangamuthu and Anr. : (2010) 9 SCC 712) : (AIR 2011 SC
146)”
10. The above judgment was followed by the Supreme Court in U.Sree
vs. U.Srinivas (supra) as follows:-
17. Recently, in H. Siddiqui (Dead) by L.Rs. v. A.
Ramalingam (2011) 4 SCC 240, while dealing with
Section 65 of the Evidence Act, this Court opined though the
said provision permits the parties to adduce secondary
evidence, yet such a course is subject to a large number of
limitations.
“ 12..... In a case where the original documents are
not produced at any time, nor has any factual
foundation been laid for giving secondary evidence, it
is not permissible for the court to allow a party to
adduce secondary evidence. Thus, secondary evidence
relating to the contents of a document is inadmissible,
until the non-production of the original is accounted
for, so as to bring it within one or other of the cases
provided for in the section. The secondary evidence
must be authenticated by foundational evidence that
the alleged copy is in fact a true copy of the original.
It has been further held that mere admission of a document in
evidence does not amount to its proof. Therefore, it is the
obligation of the Court to decide the question of admissibility
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of a document in secondary evidence before making
endorsement thereon.
18. In the case at hand, the learned Family Judge has really not
discussed anything relating to foundational evidence. The
High Court has only mentioned that when the letter was
summoned and there was a denial, the secondary evidence is
admissible. In our considered opinion, such a view is neither
legally sound nor in consonance with the pronouncements of
this Court and, accordingly, we have no hesitation in
dislodging the finding on that score.”
11. Hence, where the original documents are not produced, a factual
foundation has to be laid for giving secondary evidence while leading
evidence. In the absence of a factual foundation the secondary evidence
would be inadmissible. There is an obligation on the court to decide on the
question of admissibility of document as secondary evidence before making
an endorsement thereon the document.
12. In the present case without leading any evidence the petitioner has
filed an application under section 63 of the Indian Evidence Act for
permission to lead secondary evidence. As already noted above by this court
in Mangat Ram vs. Ashok Kumar Sharma (supra) the application is neither
necessary nor warranted. The petitioner had to lead his evidence including
evidence to lay the foundation to permit the court to appreciate as to whether
the secondary evidence can be admitted as evidence. The question of
admissibility of a document would have to be gone into before making an
endorsement, as noted in the above judgments.
13. In view of the above, the impugned order is quashed as the same
suffers from material irregularity. The petitioner may proceed accordingly in
light of the above for recording of secondary evidence. The petition stands
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disposed of. All pending applications also stand disposed of accordingly.
JAYANT NATH, J.
AUGUST 24, 2016/n
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