In another case, in H. Siddiqui (dead) by LRs. vrs. A.
Ramalingam, reported in AIR 2011 SC 1492, their lordships’ of
the Hon’ble Supreme Court, have held that 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
The secondary evidence relating to the contents of a
evidence.
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 Section 65. Their lordships’ have held as under:
“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 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.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CMPMO No. 165 of 2014.
Decided on: September 02, 2014.
Anita Beri
Versus
Coram
The Hon’ble Mr. Justice Rajiv Sharma, Judge.
Citation; AIR 2014 Himachal pradesh 63
Key facts, necessary for the adjudication of the petition
are that the petitioner (hereinafter referred to as the plaintiff ) and
Smt. Anila Sood have filed a suit under Section 34 and 38 of the
Specific Relief Act, 1963, for declaration that the respondent-
defendant (hereinafter referred to as the defendant) has no right,
title or interest over the suit property in any manner and plaintiffs
are in possession of the same.
Consequently, defendants be
restrained from causing any type of loss, injury and doing any
such act which may in any manner, cause prejudice to the user,
possession and title of the plaintiff qua the suit property.
The
subject matter of the suit is part of the land defined as Survey No.
41, Kasauli Cantt. Tehsil Kasauli and structures/buildings more
specifically known as “Dharma Prakash, Homestead”. One late Sh.
Duni Chand Advocate was owner in possession of land comprised
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in Survey No. 41, measuring 2.31 acres described as “Kildare
Estate” Homestead Dharma Prakash.
Late Sh. Duni Chand,
during his life time executed a gift deed with regard to the property
owned by him which was registered as deed No. 2 with Sub
Sh. Tek Chand.
Registrar, Kasauli. He gifted his properties to his son Justice late
Justice late Sh. Tek Chand became owner-in-
Justice late Sh. Tek Chand
possession of the suit property.
expired on 16.6.1996 leaving behind two daughters Smt. Anila
rt
Sood and Smt. Anita Beri and one son Sh. Vikram Dhanda.
Justice late Sh. Tek Chand during his life time executed a legal
and valid ‘will’ in favour of plaintiff No. 2, Smt. Anita Beri, which
was duly registered with Sub Registrar Chandigarh, as deed No.
410 dated 19.6.1984. The mother of defendant was step sister of
Justice late Sh. Tek Chand. He was using portion of house known
as ‘Homestead’ with the permission of plaintiff No. 2, namely, Smt.
Anita Beri. She came to know that defendant was misusing the
license and raised some illegal construction in the shape of
platform, so as to use the same for the purpose of car parking.
According to the plaintiff, defendant has no right, title or interest
over the suit property and as such could not change the nature of
the same. A legal notice was issued on 5.11.2006. Reply was sent
by the defendant to the same.
The defendant has also started
causing obstruction to the path which leads from circular road to
‘Homestead cottage’ and ‘Homestead building’. Plaintiff No. 2 has
requested the defendant not to lock the gate. However, the lock on
the gate has been put to cause temporary obstruction, hindrance
and prejudice to the user of the suit property by plaintiff No. 2.
3.
The written statement was filed by the defendant to
the plaint. Replication was filed to the written statement. Plaintiff
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No. 2 has already led evidence.
However, when the evidence of
defendant was led, he moved an application under Section 65 of
the Indian Evidence Act, 1872, read with Section 151 CPC, for
leading secondary evidence for grant of permission to prove the
letter of disclaimer Ext. DW-2/B, executed by Justice late Sh. Tek
Chand on 24.8.1982, by way of secondary evidence.
According
to
the
averments
contained
4.
in
the
application under Section 65 of the Indian Evidence Act, 1872, the
rt
defendant has summoned the record of General Land Register from
the Office of D.E.O. Ambala, who is the custodian of the record. At
the time of sanction of the mutation with regard to the suit
property he had filed the original affidavits of the co-sharers
including affidavits and original letter of disclaimer of Justice late
Sh. Tek Chand with one photostat set of the same in the office of
D.E.O. Ambala.
On the basis of the original letter of disclaimer
and affidavits, mutation of the suit property was sanctioned in
favour of the deponent.
The concerned official produced the
original record in the Court on 4.7.2013 except the letter of
disclaimer executed by Justice late Sh. Tek Chand on 24.8.1982,
in favour of Sh. Harish Chandra Dhanda and Smt. Vijaya Kumari,
the mother of the applicant.
The original disclaimer letter is
supposed to be in the said office but the concerned official made
statement on oath in the Court that the original is not in their
office and their office has photostat copy of the original, and
therefore, he produced the photostat copy of the letter.
He has
also sought the record from the office of Director, Defence Estate,
Chandigarh, where parallel record is also maintained.
The
concerned official produced the record and stated that the original
of letter of disclaimer DW-2/B was not available in their office.
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Only photocopy was available. He also summoned the record of
Chief Executive Officer, Kasauli, where record of properties of
Cantonment area is also maintained but the original of the letter of
disclaimer of Justice late Sh. Tek Chand was not available in their
record. Thus, according to the application, the defendant despite
of his efforts, the original of DW-2/B was not traceable and has
been misplaced/lost from the Office of D.E.O. Ambala.
It is, in
these circumstances, the application was filed.
Reply to the application was filed. It was denied that
rt
5.
the letter of disclaimer ever existed or photostat of the same was
ever made. Justice late Sh. Tek Chand never executed disclaimer
letter. The photostat copy was forged one.
Issues were framed by the learned Civil Judge (Sr.
6.
Divn.) Kasauli, District Solan on 14.6.2011. Sh. Rakesh Mahindra
AW-1, defendant-applicant has led his evidence by filing affidavit
AW-1/A. In his cross-examination, he has admitted that he has
not mentioned in any document except affidavit Ext. AW-1/A that
the letter of disclaimer was executed by Justice late Sh. Tek Chand
in his presence.
He has also admitted that it has not been
mentioned in any of the documents earlier that this document was
executed in front of somebody else or it was given to his mother by
him.
7.
The plaintiff has also led his evidence by filing affidavit
Ext. PW-2/A. She has denied that disclaimer document Ext. DW-
2/B was ever executed by Justice late Sh. Tek Chand. The learned
Civil Judge (Sr. Divn.), Kasauli, allowed the application on
3.6.2014, hence this petition.
8.
I have heard learned Advocates and gone through the
pleadings carefully.
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9.
There is no averment about Ext. DW-2/B in the
Written Statement. The Written Statement was filed on 19.2.2007.
DW-2/B infact is only a photocopy. The plaintiffs are claiming the
property on the basis of a registered gift deed executed in her
It was necessary for the defendant to
favour in the year 1984.
prove that in what manner the document dated 24.8.1982 was
executed. The defendant while appearing as AW-1 has admitted in
his cross-examination that except in his affidavit Ext. AW-1/A, he
rt
has not mentioned in any document that the letter of disclaimer
was executed by Justice late Sh. Tek Chand in his presence. The
statement of DW-2 does not prove that Ext. DW-2/A, ever existed.
DW-2 Sh. Gurcharan Singh, has categorically admitted in his
cross-examination that he has not brought the original of Ext. DW-
2/B. He has also admitted that on Ext. DW-2/B, the signatures of
P.C. Danda were not legible.
Volunteered that, those were not
visible. The learned trial Court has completely misread the oral as
well as the documentary evidence, while allowing the application
under Section 65 of the Indian Evidence Act, 1872, more
particularly, the statements of DW-2 Gurcharan Singh and DW-3
Deepak Narang. The applicant has miserably failed to comply with
the provisions of Section 65 of the Indian Evidence Act, 1872. The
learned trial Court has erred by coming to the conclusion that the
applicant has taken sufficient steps to produce document Ext. DW-
2/B.
10.
Their lordships’ of the Hon’ble Supreme Court in the
case of J. Yashoda vrs. Smt. K. Shobha Rani, reported in AIR
2007 SC 1721, have held that in order to enable a party to
produce secondary evidence, it is necessary for the party to prove
existence and execution of the original document. The conditions
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laid down in this Section must be fulfilled before the secondary
evidence is admitted. The secondary evidence of the contents of a
document cannot be admitted without non-production of the
original being first accounted for in such a manner as to bring it
within one or other of the cases provided for in the Section. Their
lordships’ have held as under:
“7. Secondary evidence, as a general rule is admissible only
in the absence of primary evidence. If the original itself is
found to be inadmissible through failure of the party, who
rt
files it to prove it to be valid, the same party is not entitled
to introduce secondary evidence of its contents.
8. Essentially, secondary evidence is an evidence which
may be given in the absence of that better evidence which
law requires to be given first, when a proper explanation of
its absence is given. The definition in Section 63 is
exhaustive as the Section declares that secondary evidence
"means and includes" and then follow the five kinds of
secondary evidence.
9. The rule which is the most universal, namely that the
best evidence the nature of the case will admit shall be
produced, decides this objection that rule only means that,
so long as the higher or superior evidence is within your
possession or may be reached by you, you shall give no
inferior proof in relation to it. Section 65 deals with the
proof of the contents of the documents tendered in
evidence. In order to enable a party to produce secondary
evidence it is necessary for the party to prove existence and
execution of the original document. Under Section 64,
documents are to be provided by primary evidence. Section
65, however permits secondary evidence to be given of the
existence, condition or contents of documents under the
circumstances mentioned. The conditions laid down in the
said Section must be fulfilled before secondary evidence can
be admitted. Secondary evidence of the contents of a
document cannot be admitted without non-production of
the original being first accounted for in such a manner as
to bring it within one or other of the cases provided for in
the Section. In Ashok Dulichand v. Madahavlal Dube and
Another [1975(4) SCC 664], it was inter alia held as follows:
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7
"After hearing the learned counsel for the parties, we
are of the opinion that the order of the High Court in
this respect calls for no interference. According to
clause (a) of Section 65 of Indian Evidence Act,
Secondary evidence may be given of the existence,
condition or contents of a document when the
original is shown or appears to be in 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 of any
person legally bound to produce it, and when, after
rt
the notice mentioned in Section 66 such person does
not produce it. Clauses (b) to (g) of Section 65 specify
other
some
contingencies
wherein
secondary
evidence relating to a document may be given, but
we are not concerned with those clauses as it is the
common case of the parties that the present case is
not covered by those clauses. In order to bring his
case within the purview of clause (a) of Section 65,
the appellant filed applications on July 4, 1973,
before respondent No. 1 was examined as a witness,
praying that the said respondent be ordered to
produce the original manuscript of which, according
to the appellant, he had filed Photostat copy. Prayer
was also made by the appellant that in case
respondent no. 1 denied that the said manuscript
had been written by him, the photostat copy might
be got examined from a handwriting expert. The
appellant also filed affidavit in support of his
applications. It was however, nowhere stated in the
affidavit that the original document of which the
Photostat copy had been filed by the appellant was in
the possession of Respondent No. 1. There was also
no other material on the record to indicate the
original
document
was
in
the
possession
of
respondent no.1. The appellant further failed to
explain as to what were the circumstances under
which the Photostat copy was prepared and who was
in possession of the original document at the time its
photograph was taken. Respondent No. 1 in his
affidavit denied being in possession appeared to the
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High Court to be not above suspicion. In view of all
the circumstances, the High Court to be not above
suspicion. In view of all the circumstances, the High
Court came to the conclusion that no foundation had
been laid by the appellant for leading secondary
evidence in the shape of the Photostat copy. We find
no infirmity in the above order of the High Court as
might justify interference by this Court."
In another case, in H. Siddiqui (dead) by LRs. vrs. A.
11.
Ramalingam, reported in AIR 2011 SC 1492, their lordships’ of
the Hon’ble Supreme Court, have held that 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
The secondary evidence relating to the contents of a
evidence.
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 Section 65. Their lordships’ have held as under:
“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 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.
9
...........
...........
...................
...................
.......................
.......................
12. In our humble opinion, the Trial Court could not
proceed in such an unwarranted manner for the reason
that the respondent had merely admitted his signature on
the photocopy of the power of attorney and did not admit
the contents thereof. More so, the court should have borne
in mind that admissibility of a document or contents
thereof may not necessary lead to drawing any inference
unless the contents thereof have some probative value.”
12.
In order to lead secondary evidence, it is necessary for
the party to prove existence and execution of the original
document. The defendant has failed to prove that he has ever
handed over the original of the disclaimer letter dated 24.8.1982 to
the Authorities. The entire exercise has been undertaken by the
Accordingly, the petition is allowed. The order dated
13.
defendant to overcome the shortcomings in his evidence.
3.6.2014 passed by the learned Civil Judge (Sr. Divn.) Kasauli,
District Solan, H.P., in CMA No. 36/6 of 2014 in Civil Suit No.
170/1 of 2006, is set aside. In order to obviate delay, the parties
are directed to appear before the learned trial Court on 22.9.2014
through their Advocates.
September 02, 2014,
( Rajiv Sharma ),
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