In my view, the aforesaid circumstances therefore raise a serious
question as regards the Plaintiffs case of the loss of the said document. This is
therefore not a case where a party has to come forward with a plain and simple
case that the original has been lost on account of some reason and that
permission to lead secondary evidence is therefore prayed for. This is a case
where the Plaintiffs on the basis of the case which they have pleaded in the
said application Exhibit 53 which appears to be scripted, want to lead
secondary evidence. Hence the bonafides of the case of the Plaintiffs as pleaded
is required to be considered by this Court and on such consideration this Court
for the reasons mentioned hereinabove has come to a conclusion that the
Plaintiffs have not accounted for the alleged loss of the original of the said
document dated 542004.
The factual foundation to lead secondary evidence
therefore cannot be said to be laid by the Plaintiffs. The Plaintiffs therefore
cannot be permitted to lead secondary evidence in respect of the said
document as their case does not satisfy the requirements of Section 65 of the
Indian Evidence Act. Hence no fault can be found with the impugned order
passed by the Trial Court.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 10558 OF 2013
Om Health Centres Pvt Ltd.
Versus
Ratanshi Premji Charitable Trust
CORAM : R. M. SAVANT, J.
PRONOUNCED ON: 4th FEBRUARY, 2015
Citation;2015(2) ALLMR 874
1 Rule, with the consent of the Learned Counsel for the parties made
returnable forthwith and heard.
2 The Writ Jurisdiction of this Court under Article 227 of the
Constitution of India, is invoked against the order dated 2072013
passed by
the Learned 7th Joint Civil Judge Senior Division, Thane by which order, the
application Exhibit 53 filed by the Petitioners herein i.e. the original Plaintiffs
to lead secondary evidence in respect of the agreement dated 542004,
came
to be rejected.
3 The facts necessary to be cited for adjudication of the above
Petition can be stated thus:
The Petitioners herein are the original Plaintiffs, whereas the
Respondents are the original Defendants in the Suit in question. The
Respondent No.1 is a public trust registered under the Bombay Public Trust
Act, 1950. The Respondent Nos. 2 to 6 are the trustees amongst whom the
Respondent No.2 was the Managing Trustee at the relevant time.
4 The Suit in question i.e. Special Civil Suit No.276 of 2007 has
been filed by the Plaintiffs for specific performance of the said agreement dated
542004.
The said agreement is the agreement for development entered into
between the Plaintiffs and the Defendants for development of the lands owned
by the Respondent No.1 trust. It is the case of the Plaintiffs that since a part of
the consideration for the suit property was payable by way of share from
development, the said agreement was termed as an agreement for
development in partnership. It is however, the case of the Plaintiffs that a
perusal of the terms of the agreement makes it apparent that the said
agreement is in fact an agreement to sale the suit property and was according
to the Plaintiffs always treated as such by the parties. In the plaint, the
Plaintiffs have made averments as regards the payment of the consideration. It
is on account of the fact that the Defendants inspite of the Plaintiffs requesting
them to finalise the matter in terms of the said agreement, that on the
Defendants refusal to do so that the Suit in question for specific performance of
the agreement came to be filed. In the Suit the Plaintiffs moved an application
for interim reliefs. The Trial Court vide its order dated 2172007
was pleased
to grant injunction to the Plaintiffs thereby restraining the Defendants from
transferring, alienating or encumbering or creating third party interest in
respect of the Suit property.
5 The Defendants carried the matter in Appeal by filing Appeal From
Order No.832 of 2007. The said Appeal From Order was disposed of by a
Learned Single Judge of this Court (J.H.Bhatia, J.) as his Lordship then was by
his order dated 1322008.
This Court modified the order passed by the Trial
Court to the extent that the Defendants were restrained from alienating or
creating third party interest and in case the Defendants intended to seek
permission of the Charity Commissioner to transfer, alienate or create third
party interest in the suit property. The Respondent trust was directed to give
prior notice to the Defendants.
6 In the Suit, the Respondent No.2 who was the Managing Trustee at
the relevant time filed his Written Statement. In the said Written Statement,
the Defendant No.2 adverted to the writing executed between the Plaintiffs
and the Defendants which was executed by him on behalf of the Defendants.
However, the Defendant No.2 denied that the said documents constituted an
agreement to sale. Paragraph 3 of the Written Statement of the Defendant No.2
is material and is reproduced herein under:
“3. With reference to para No.4 of the Plaint, this
Defendant submits that there was merely writing
between this Defendant and the Plaintiff to
develop the property of the Trust jointly as
partners in partnership. The said partnership was
not registered. It is submitted that if it is
contention of the Plaintiff that there was an
Agreement for Development in Partnership and as
alleged litigation is arose out of contact. There is
bar to file present suit for and on behalf of
unregistered partnership firm, on that count the
Suit of the Plaintiff is not maintainable. The
plaintiff is not sure as to whether the alleged
agreement is “Agreement for Sale” or Agreement
of Partnership” for development of the suit
property.”
7 The Defendant Nos.1, 3 and 4 also filed their Written Statement
on 1872007.
However, in the said Written Statement, they denied the
execution of the said agreement. It seems that thereafter on 17122009
the
Defendant Nos.1, 3, and 4 filed application for amendment of the Written
Statement. The said amendment application came to be allowed pursuant to
which the Defendant Nos.1, 3 and 4 amended their Written Statement. In
paragraph (g) which was the paragraph inserted by way of the amendment,
the Defendant Nos.1, 3 and 4 adverted to the fact that whilst the order of
statusquo
was in force, the Defendant No.1 through its Managing Trustee
Defendant No.2 entered into an agreement for development with the Plaintiff
on 542004
in sheer violation of the said order of statusquo.
8 The Suit thereafter proceeded to trial and the Plaintiffs were
required to file their affidavit of evidence. It is the case of the Plaintiffs that for
preparation of the affidavit in lieu of Examination in chief, the employee of the
Plaintiff No.1 Mr. Pradeep Vora was required to travel from the office of the
Plaintiff No.1 to the office of the Plaintiffs lawyer one Mr. Ravi Kamat in Thane
on 1012013.
It is their case that while Mr. Pradeep Vora was on his way from
their office to the office of the lawyer at Thane, he was hit by motorcycle
outside the office of the Plaintiff No.1 and the plastic bag containing various
documents connected to the matter was scattered here and there on the road
due to the collision between Mr. Vora and a motorcyclist. It is the case of the
Plaintiffs that since Mr. Vora was dazed and in shock, he collected the papers
lying around on the road and proceeded to the office of the lawyer. This
according to the Plaintiffs was possible as Mr. Vora was not seriously injured or
physically disabled in any way as a result of the collision with the motorcycle.
It is their case that later on the said Mr. Vora realised that the crucial document
being the original of the agreement dated 542004
was lost/misplaced as a
result of the accident and the papers being scattered on the road. It is the their
case that few days prior to the loss of the said document, the Plaintiffs
coincidently had notarised a copy of the original agreement from a notary
public, for the purposes of keeping a record with the Plaintiff No.1 as the
original was required to be submitted / deposited before the Trial Court. The
Plaintiffs accordingly filed the affidavit of evidence in the Trial Court. In view
of the fact that the said document dated 542004
was not the original, the
Plaintiffs sought to lead secondary evidence in respect of the said document.
The Plaintiffs sought to seek permission to lead secondary evidence vide the
said application Exhibit 53 for the reasons which have been mentioned herein
above namely that the employee of the Plaintiff No.1 Mr. Vora had a collision
with a motorcyclist and in the said process the original of the said agreement
dated 542004
was lost. In the said application, it was the case of the Plaintiffs
that there is a presumption that the notary public who has notarised the said
agreement dated 542004
in his said capacity has verified the original and
thereafter certified the copy thereof as a true copy and hence the notarised true
copy becomes primary evidence.
8 It appears that though the incidence of the loss of the said
document has taken place on 1012013,
the Plaintiff No.1 has intimated to the
Malbar Hills Police Station of the loss of the said document on 1012013
on
account of the collision between the employee of the Plaintiff No.1 and the
motorcyclist by way of an affidavit filed with the Malbar Hill Police Station
only on 622013.
The Malbar Hill Police Station has accordingly issued a
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certificate on the same day itself i.e. 622013
in which certificate it has been
recorded that Mr. Pradeep Vora called on the police station and reported loss of
his document between M/.s Om Health Centers Pvt Ltd. and Mr. Ratanshi
Premji Charitable Trust dated 542004.
It has further been recorded in the said
certificate that the complaint of the said Mr. Pradeep Vora is kept on record as
the original document is lost in the jurisdiction of the said police station.
9 The said application Exhibit 53 was opposed to on behalf of the
Defendant Nos.1, 3 to 5. The said Defendants questioned the theory put up by
the Plaintiffs as regards the loss of the said document on 1012013.
It is their
case that the said document can be termed as a got up document or fabricated
document. The Defendants also questioned that on the two intervening dates
i.e. 1112013
and 422013
i.e. prior to the application Exhibit 53 filed under
Section 65 of the Indian Evidence Act. The Suit had appeared on board and the
factum of the loss of the original was never pointed out to the Court. The
Defendants therefore contended that the entire story is fabricated and cooked
up story and is an after thought so as to make out a case for leading secondary
evidence.
10 The Trial Court considered the said application Exhibit 53 and has
by the impugned order dated 2722013
rejected the said application. The Trial
Court held that for the purpose of Section 65 the loss or destruction of the
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original has to be proved. The Trial Court refused to accept the case of the
Plaintiffs that the said document was lost on account of the collision between
the employee of the Plaintiff No.1 Mr. Pradeep Vora and the motorcyclist. The
Trial Court observed that though he had gone to the Advocate and it was found
that the document dated 542004
was missing he had not lodged a report
with the police station on the same day i.e. 1012013.
The Trial Court further
observed that the report with the police station was lodged only on 622013
i.e. after a period of 26 days and that there is no explanation for the delay. The
Trial Court also observed that though the employee of the Plaintiff No.1 met
with an accident but no complaint was made to the police against the
motorcyclist who had dashed against Mr. Pradeep Vora. This according to the
Trial Court were the circumstances which did not inspire confidence. The Trial
Court also raised a query as to why the original was not filed at the stage of
Order XIII Rule 1 when a copy of the said original was notarised on 212013
meaning thereby that the Plaintiffs had the original in their possession at least
on 212013.
As indicated above the Trial Court accordingly by the impugned
order dated 2872013
has rejected the said application.
11 Heard the Learned Counsel for the parties.
12 The Learned Counsel appearing for the Petitioners Dr. Birendra
Saraf would contend that the existence of the said agreement is not denied
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either by the Defendant No.2 or by the Defendant Nos.1, 3 to 5, if one goes
through the Written Statement filed by the said Defendants as also the
amended Written Statement filed on behalf of the Defendant Nos.1, 3 to 5.
The Learned Counsel would contend that the Trial Court had erred in rejecting
the application in the light of the fact that the said document in original was
lost. The Learned Counsel would contend that the Trial Court ought to have
given an opportunity to the Plaintiffs to lead secondary evidence in respect of
the said document dated 542004.
13 Per contra, the Learned Counsel appearing for the Respondent
Nos.1, 3 to 6 Mr. Mandlik would contend that the story sought to be put up by
the Plaintiffs for leading secondary evidence does not inspire confidence and it
is a cooked up story. The Learned Counsel would contend that even to the Suit
a typed copy of the agreement dated 542004
has been filed when the
Plaintiffs could very well have filed the original or atleast a xerox copy of the
original along with Suit. The Learned Counsel would contend that the manner
in which the Plaintiff claimed that the said document has been lost does not
inspire confidence. That there are two many loose ends in the case put up by
the Plaintiffs in support of their contentions that the said document has been
lost on account of the collision between the employee of the Plaintiff No.1 Mr.
Pradeep Vora and the motorcyclist. The Learned Counsel would also contend
that the complaint to the police station has been made on 622013
i.e. almost
after a period of 26 days after happening of the incident and it is therefore
unbelievable that if the document which is of prime importance to the Plaintiffs
is lost the Plaintiffs would complain after the said length of time.
14 Having heard the Learned Counsel for the parties I have
considered the rival contentions. The issue that arise for consideration in the
above Petition is as to whether the Plaintiffs are required to be granted
permission to lead secondary evidence. The eventualities in which the
secondary evidence can be led are mentioned in Section 65 of the Indian
Evidence Act. In so far as the instant matter is concerned, the case of the
Plaintiffs falls within clause (c) of Section 65 which is reproduced herein for
sake of convenience :
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) ….............................
(b) …............................
(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;
A reading of clause (c) applies 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. It is in the context of clause (c) that the present matter would
have to be considered. The Plaintiffs in the instant case were therefore required
to lay a factual foundation for being entitled to lead secondary evidence in
terms of the said clause (c).
15 The case of the Plaintiffs would therefore have to be considered in
the said context. At the costs of repetition, it is required to be noted that it is
the case of the Plaintiffs that for preparation of the affidavit in lieu of
Examination in chief, the employee of the Plaintiff No.1 Mr. Pradeep Vora was
required to travel from the office of the Plaintiff No.1 to the office of the
Plaintiffs lawyer one Mr. Ravi Kamat in Thane on 1012013.
It is their case
that while Mr. Pradeep Vora was on his way to the office of the lawyer at
Thane, he was hit by a motorcycle outside the office of the Plaintiff No.1 and
the plastic bag containing various documents connected to the matter was
scattered here and there on the road due to the collision between Mr. Vora and
a motorcyclist. It is their case that since Mr. Vora was only dazed and was not
seriously injured or physically disabled in any way he collected the papers lying
around on the road and proceeded to the office of the lawyer of the Plaintiffs.
However he later realised that the crucial document being the original of the
agreement dated 542004
was lost/misplaced as a result of the accident and
the papers being scattered on the road. In so far as the loss of the said
document is concerned, it is required to be noted that in the application Exhibit
53, it has been stated in paragraph 2 that the loss of the said document was
discovered by Mr. Pradeep Vora when he reached the office of their lawyer and
found that the bag containing the document does not contain the original of
the agreement dated 542004.
Hence in so far as the application is concerned,
the loss was discovered by the employee on reaching the Advocates office in
Thane on the same day i.e. 1012013.
However, in the affidavit filed with the
police in paragraph 4 it has been mentioned by Mr. Pradeep Vora that on 122013
when he along with the Director of the Plaintiff No.1 Mr. Prabhakar Rao
visited the office of the Advocate Mr. Ravi Kamat that they were informed by
the Advocate that the original of the agreement dated 542004
was lost.
Hence the statement in the application Exhibit 53 and the statement in the
affidavit filed with police are contrary to each other.
16 It is further required to be noted that the incident took place on
1012013
and the case of the Plaintiffs being that the said Mr. Pradeep Vora
was given a dash by the motorcyclist. Pertinently the complaint to the police
was lodged only on 622013
and curiously by way of filing an affidavit before
the police. In my view this is the second circumstance which creates a doubt as
regards the case of the Plaintiffs for leading secondary evidence on account of
the loss of the original of the agreement dated 542004.
It is also required to
be noted that the Plaintiffs are in the business of development of properties
and construction. It is impossible to believe that the employee of the Plaintiffs
was carrying important documents which were required for prosecuting the
Suit filed by the Plaintiffs in an open plastic bag. It is also required to be noted
that the Plaintiffs have not supported their case by any corroborative evidence
of any independent other person who was present on site when the accident
took place which according to the Plaintiffs took place outside their office. It is
also impossible to believe that though dash was given to the employee Mr.
Pradeep Vora he did not take down the number of the motorcycle, as surely if
the employee Mr. Pradeep Vora was felled down by the motorcycle surely a
crowd must have gathered on site. The fact that the said incident was reported
to the management of the Plaintiff No.1, is also conspicuously absent in the
application Exhibit 53. It is also required to be noted that it is a too much of a
coincidence that the document is lost on 1012013
and a copy of the said
document was got notarised before that on 212013.
It is also curious that
only the said document dated 542004
is lost. The Suit has been filed in the
year 2007 and why the original of the said document was not filed along with
the other documents therefore begs an answer. The notarisation of the said
document therefore can only be attributed to the fact that the Plaintiffs
probably desired to give authenticity to the said document as also corroborate
their case that though original was lost they have a notarised copy. The fact
that the Defendant No.2 has in the Written Statement pleaded that it was only
a writing also cannot be lost sight of. It is also required to be noted that the
Suit had come up before the Trial Court on two intervening dates, but the loss
of the said document was not informed to the Trial Court.
17 In my view, the aforesaid circumstances therefore raise a serious
question as regards the Plaintiffs case of the loss of the said document. This is
therefore not a case where a party has to come forward with a plain and simple
case that the original has been lost on account of some reason and that
permission to lead secondary evidence is therefore prayed for. This is a case
where the Plaintiffs on the basis of the case which they have pleaded in the
said application Exhibit 53 which appears to be scripted, want to lead
secondary evidence. Hence the bonafides of the case of the Plaintiffs as pleaded
is required to be considered by this Court and on such consideration this Court
for the reasons mentioned hereinabove has come to a conclusion that the
Plaintiffs have not accounted for the alleged loss of the original of the said
document dated 542004.
The factual foundation to lead secondary evidence
therefore cannot be said to be laid by the Plaintiffs. The Plaintiffs therefore
cannot be permitted to lead secondary evidence in respect of the said
document as their case does not satisfy the requirements of Section 65 of the
Indian Evidence Act. Hence no fault can be found with the impugned order
passed by the Trial Court. The impugned order cannot be said to suffer from
any illegality or infirmity for this Court to interfere in its Writ Jurisdiction. The
Writ Petition is accordingly dismissed. Rule discharged with parties to bear
their respective costs.
[R.M.SAVANT, J]
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question as regards the Plaintiffs case of the loss of the said document. This is
therefore not a case where a party has to come forward with a plain and simple
case that the original has been lost on account of some reason and that
permission to lead secondary evidence is therefore prayed for. This is a case
where the Plaintiffs on the basis of the case which they have pleaded in the
said application Exhibit 53 which appears to be scripted, want to lead
secondary evidence. Hence the bonafides of the case of the Plaintiffs as pleaded
is required to be considered by this Court and on such consideration this Court
for the reasons mentioned hereinabove has come to a conclusion that the
Plaintiffs have not accounted for the alleged loss of the original of the said
document dated 542004.
The factual foundation to lead secondary evidence
therefore cannot be said to be laid by the Plaintiffs. The Plaintiffs therefore
cannot be permitted to lead secondary evidence in respect of the said
document as their case does not satisfy the requirements of Section 65 of the
Indian Evidence Act. Hence no fault can be found with the impugned order
passed by the Trial Court.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 10558 OF 2013
Om Health Centres Pvt Ltd.
Versus
Ratanshi Premji Charitable Trust
CORAM : R. M. SAVANT, J.
PRONOUNCED ON: 4th FEBRUARY, 2015
Citation;2015(2) ALLMR 874
1 Rule, with the consent of the Learned Counsel for the parties made
returnable forthwith and heard.
2 The Writ Jurisdiction of this Court under Article 227 of the
Constitution of India, is invoked against the order dated 2072013
passed by
the Learned 7th Joint Civil Judge Senior Division, Thane by which order, the
application Exhibit 53 filed by the Petitioners herein i.e. the original Plaintiffs
to lead secondary evidence in respect of the agreement dated 542004,
came
to be rejected.
3 The facts necessary to be cited for adjudication of the above
Petition can be stated thus:
The Petitioners herein are the original Plaintiffs, whereas the
Respondents are the original Defendants in the Suit in question. The
Respondent No.1 is a public trust registered under the Bombay Public Trust
Act, 1950. The Respondent Nos. 2 to 6 are the trustees amongst whom the
Respondent No.2 was the Managing Trustee at the relevant time.
4 The Suit in question i.e. Special Civil Suit No.276 of 2007 has
been filed by the Plaintiffs for specific performance of the said agreement dated
542004.
The said agreement is the agreement for development entered into
between the Plaintiffs and the Defendants for development of the lands owned
by the Respondent No.1 trust. It is the case of the Plaintiffs that since a part of
the consideration for the suit property was payable by way of share from
development, the said agreement was termed as an agreement for
development in partnership. It is however, the case of the Plaintiffs that a
perusal of the terms of the agreement makes it apparent that the said
agreement is in fact an agreement to sale the suit property and was according
to the Plaintiffs always treated as such by the parties. In the plaint, the
Plaintiffs have made averments as regards the payment of the consideration. It
is on account of the fact that the Defendants inspite of the Plaintiffs requesting
them to finalise the matter in terms of the said agreement, that on the
Defendants refusal to do so that the Suit in question for specific performance of
the agreement came to be filed. In the Suit the Plaintiffs moved an application
for interim reliefs. The Trial Court vide its order dated 2172007
was pleased
to grant injunction to the Plaintiffs thereby restraining the Defendants from
transferring, alienating or encumbering or creating third party interest in
respect of the Suit property.
5 The Defendants carried the matter in Appeal by filing Appeal From
Order No.832 of 2007. The said Appeal From Order was disposed of by a
Learned Single Judge of this Court (J.H.Bhatia, J.) as his Lordship then was by
his order dated 1322008.
This Court modified the order passed by the Trial
Court to the extent that the Defendants were restrained from alienating or
creating third party interest and in case the Defendants intended to seek
permission of the Charity Commissioner to transfer, alienate or create third
party interest in the suit property. The Respondent trust was directed to give
prior notice to the Defendants.
6 In the Suit, the Respondent No.2 who was the Managing Trustee at
the relevant time filed his Written Statement. In the said Written Statement,
the Defendant No.2 adverted to the writing executed between the Plaintiffs
and the Defendants which was executed by him on behalf of the Defendants.
However, the Defendant No.2 denied that the said documents constituted an
agreement to sale. Paragraph 3 of the Written Statement of the Defendant No.2
is material and is reproduced herein under:
“3. With reference to para No.4 of the Plaint, this
Defendant submits that there was merely writing
between this Defendant and the Plaintiff to
develop the property of the Trust jointly as
partners in partnership. The said partnership was
not registered. It is submitted that if it is
contention of the Plaintiff that there was an
Agreement for Development in Partnership and as
alleged litigation is arose out of contact. There is
bar to file present suit for and on behalf of
unregistered partnership firm, on that count the
Suit of the Plaintiff is not maintainable. The
plaintiff is not sure as to whether the alleged
agreement is “Agreement for Sale” or Agreement
of Partnership” for development of the suit
property.”
7 The Defendant Nos.1, 3 and 4 also filed their Written Statement
on 1872007.
However, in the said Written Statement, they denied the
execution of the said agreement. It seems that thereafter on 17122009
the
Defendant Nos.1, 3, and 4 filed application for amendment of the Written
Statement. The said amendment application came to be allowed pursuant to
which the Defendant Nos.1, 3 and 4 amended their Written Statement. In
paragraph (g) which was the paragraph inserted by way of the amendment,
the Defendant Nos.1, 3 and 4 adverted to the fact that whilst the order of
statusquo
was in force, the Defendant No.1 through its Managing Trustee
Defendant No.2 entered into an agreement for development with the Plaintiff
on 542004
in sheer violation of the said order of statusquo.
8 The Suit thereafter proceeded to trial and the Plaintiffs were
required to file their affidavit of evidence. It is the case of the Plaintiffs that for
preparation of the affidavit in lieu of Examination in chief, the employee of the
Plaintiff No.1 Mr. Pradeep Vora was required to travel from the office of the
Plaintiff No.1 to the office of the Plaintiffs lawyer one Mr. Ravi Kamat in Thane
on 1012013.
It is their case that while Mr. Pradeep Vora was on his way from
their office to the office of the lawyer at Thane, he was hit by motorcycle
outside the office of the Plaintiff No.1 and the plastic bag containing various
documents connected to the matter was scattered here and there on the road
due to the collision between Mr. Vora and a motorcyclist. It is the case of the
Plaintiffs that since Mr. Vora was dazed and in shock, he collected the papers
lying around on the road and proceeded to the office of the lawyer. This
according to the Plaintiffs was possible as Mr. Vora was not seriously injured or
physically disabled in any way as a result of the collision with the motorcycle.
It is their case that later on the said Mr. Vora realised that the crucial document
being the original of the agreement dated 542004
was lost/misplaced as a
result of the accident and the papers being scattered on the road. It is the their
case that few days prior to the loss of the said document, the Plaintiffs
coincidently had notarised a copy of the original agreement from a notary
public, for the purposes of keeping a record with the Plaintiff No.1 as the
original was required to be submitted / deposited before the Trial Court. The
Plaintiffs accordingly filed the affidavit of evidence in the Trial Court. In view
of the fact that the said document dated 542004
was not the original, the
Plaintiffs sought to lead secondary evidence in respect of the said document.
The Plaintiffs sought to seek permission to lead secondary evidence vide the
said application Exhibit 53 for the reasons which have been mentioned herein
above namely that the employee of the Plaintiff No.1 Mr. Vora had a collision
with a motorcyclist and in the said process the original of the said agreement
dated 542004
was lost. In the said application, it was the case of the Plaintiffs
that there is a presumption that the notary public who has notarised the said
agreement dated 542004
in his said capacity has verified the original and
thereafter certified the copy thereof as a true copy and hence the notarised true
copy becomes primary evidence.
8 It appears that though the incidence of the loss of the said
document has taken place on 1012013,
the Plaintiff No.1 has intimated to the
Malbar Hills Police Station of the loss of the said document on 1012013
on
account of the collision between the employee of the Plaintiff No.1 and the
motorcyclist by way of an affidavit filed with the Malbar Hill Police Station
only on 622013.
The Malbar Hill Police Station has accordingly issued a
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certificate on the same day itself i.e. 622013
in which certificate it has been
recorded that Mr. Pradeep Vora called on the police station and reported loss of
his document between M/.s Om Health Centers Pvt Ltd. and Mr. Ratanshi
Premji Charitable Trust dated 542004.
It has further been recorded in the said
certificate that the complaint of the said Mr. Pradeep Vora is kept on record as
the original document is lost in the jurisdiction of the said police station.
9 The said application Exhibit 53 was opposed to on behalf of the
Defendant Nos.1, 3 to 5. The said Defendants questioned the theory put up by
the Plaintiffs as regards the loss of the said document on 1012013.
It is their
case that the said document can be termed as a got up document or fabricated
document. The Defendants also questioned that on the two intervening dates
i.e. 1112013
and 422013
i.e. prior to the application Exhibit 53 filed under
Section 65 of the Indian Evidence Act. The Suit had appeared on board and the
factum of the loss of the original was never pointed out to the Court. The
Defendants therefore contended that the entire story is fabricated and cooked
up story and is an after thought so as to make out a case for leading secondary
evidence.
10 The Trial Court considered the said application Exhibit 53 and has
by the impugned order dated 2722013
rejected the said application. The Trial
Court held that for the purpose of Section 65 the loss or destruction of the
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original has to be proved. The Trial Court refused to accept the case of the
Plaintiffs that the said document was lost on account of the collision between
the employee of the Plaintiff No.1 Mr. Pradeep Vora and the motorcyclist. The
Trial Court observed that though he had gone to the Advocate and it was found
that the document dated 542004
was missing he had not lodged a report
with the police station on the same day i.e. 1012013.
The Trial Court further
observed that the report with the police station was lodged only on 622013
i.e. after a period of 26 days and that there is no explanation for the delay. The
Trial Court also observed that though the employee of the Plaintiff No.1 met
with an accident but no complaint was made to the police against the
motorcyclist who had dashed against Mr. Pradeep Vora. This according to the
Trial Court were the circumstances which did not inspire confidence. The Trial
Court also raised a query as to why the original was not filed at the stage of
Order XIII Rule 1 when a copy of the said original was notarised on 212013
meaning thereby that the Plaintiffs had the original in their possession at least
on 212013.
As indicated above the Trial Court accordingly by the impugned
order dated 2872013
has rejected the said application.
11 Heard the Learned Counsel for the parties.
12 The Learned Counsel appearing for the Petitioners Dr. Birendra
Saraf would contend that the existence of the said agreement is not denied
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Bombay High Court
wp1055813(
reserve)
either by the Defendant No.2 or by the Defendant Nos.1, 3 to 5, if one goes
through the Written Statement filed by the said Defendants as also the
amended Written Statement filed on behalf of the Defendant Nos.1, 3 to 5.
The Learned Counsel would contend that the Trial Court had erred in rejecting
the application in the light of the fact that the said document in original was
lost. The Learned Counsel would contend that the Trial Court ought to have
given an opportunity to the Plaintiffs to lead secondary evidence in respect of
the said document dated 542004.
13 Per contra, the Learned Counsel appearing for the Respondent
Nos.1, 3 to 6 Mr. Mandlik would contend that the story sought to be put up by
the Plaintiffs for leading secondary evidence does not inspire confidence and it
is a cooked up story. The Learned Counsel would contend that even to the Suit
a typed copy of the agreement dated 542004
has been filed when the
Plaintiffs could very well have filed the original or atleast a xerox copy of the
original along with Suit. The Learned Counsel would contend that the manner
in which the Plaintiff claimed that the said document has been lost does not
inspire confidence. That there are two many loose ends in the case put up by
the Plaintiffs in support of their contentions that the said document has been
lost on account of the collision between the employee of the Plaintiff No.1 Mr.
Pradeep Vora and the motorcyclist. The Learned Counsel would also contend
that the complaint to the police station has been made on 622013
i.e. almost
after a period of 26 days after happening of the incident and it is therefore
unbelievable that if the document which is of prime importance to the Plaintiffs
is lost the Plaintiffs would complain after the said length of time.
14 Having heard the Learned Counsel for the parties I have
considered the rival contentions. The issue that arise for consideration in the
above Petition is as to whether the Plaintiffs are required to be granted
permission to lead secondary evidence. The eventualities in which the
secondary evidence can be led are mentioned in Section 65 of the Indian
Evidence Act. In so far as the instant matter is concerned, the case of the
Plaintiffs falls within clause (c) of Section 65 which is reproduced herein for
sake of convenience :
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) ….............................
(b) …............................
(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;
A reading of clause (c) applies 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. It is in the context of clause (c) that the present matter would
have to be considered. The Plaintiffs in the instant case were therefore required
to lay a factual foundation for being entitled to lead secondary evidence in
terms of the said clause (c).
15 The case of the Plaintiffs would therefore have to be considered in
the said context. At the costs of repetition, it is required to be noted that it is
the case of the Plaintiffs that for preparation of the affidavit in lieu of
Examination in chief, the employee of the Plaintiff No.1 Mr. Pradeep Vora was
required to travel from the office of the Plaintiff No.1 to the office of the
Plaintiffs lawyer one Mr. Ravi Kamat in Thane on 1012013.
It is their case
that while Mr. Pradeep Vora was on his way to the office of the lawyer at
Thane, he was hit by a motorcycle outside the office of the Plaintiff No.1 and
the plastic bag containing various documents connected to the matter was
scattered here and there on the road due to the collision between Mr. Vora and
a motorcyclist. It is their case that since Mr. Vora was only dazed and was not
seriously injured or physically disabled in any way he collected the papers lying
around on the road and proceeded to the office of the lawyer of the Plaintiffs.
However he later realised that the crucial document being the original of the
agreement dated 542004
was lost/misplaced as a result of the accident and
the papers being scattered on the road. In so far as the loss of the said
document is concerned, it is required to be noted that in the application Exhibit
53, it has been stated in paragraph 2 that the loss of the said document was
discovered by Mr. Pradeep Vora when he reached the office of their lawyer and
found that the bag containing the document does not contain the original of
the agreement dated 542004.
Hence in so far as the application is concerned,
the loss was discovered by the employee on reaching the Advocates office in
Thane on the same day i.e. 1012013.
However, in the affidavit filed with the
police in paragraph 4 it has been mentioned by Mr. Pradeep Vora that on 122013
when he along with the Director of the Plaintiff No.1 Mr. Prabhakar Rao
visited the office of the Advocate Mr. Ravi Kamat that they were informed by
the Advocate that the original of the agreement dated 542004
was lost.
Hence the statement in the application Exhibit 53 and the statement in the
affidavit filed with police are contrary to each other.
16 It is further required to be noted that the incident took place on
1012013
and the case of the Plaintiffs being that the said Mr. Pradeep Vora
was given a dash by the motorcyclist. Pertinently the complaint to the police
was lodged only on 622013
and curiously by way of filing an affidavit before
the police. In my view this is the second circumstance which creates a doubt as
regards the case of the Plaintiffs for leading secondary evidence on account of
the loss of the original of the agreement dated 542004.
It is also required to
be noted that the Plaintiffs are in the business of development of properties
and construction. It is impossible to believe that the employee of the Plaintiffs
was carrying important documents which were required for prosecuting the
Suit filed by the Plaintiffs in an open plastic bag. It is also required to be noted
that the Plaintiffs have not supported their case by any corroborative evidence
of any independent other person who was present on site when the accident
took place which according to the Plaintiffs took place outside their office. It is
also impossible to believe that though dash was given to the employee Mr.
Pradeep Vora he did not take down the number of the motorcycle, as surely if
the employee Mr. Pradeep Vora was felled down by the motorcycle surely a
crowd must have gathered on site. The fact that the said incident was reported
to the management of the Plaintiff No.1, is also conspicuously absent in the
application Exhibit 53. It is also required to be noted that it is a too much of a
coincidence that the document is lost on 1012013
and a copy of the said
document was got notarised before that on 212013.
It is also curious that
only the said document dated 542004
is lost. The Suit has been filed in the
year 2007 and why the original of the said document was not filed along with
the other documents therefore begs an answer. The notarisation of the said
document therefore can only be attributed to the fact that the Plaintiffs
probably desired to give authenticity to the said document as also corroborate
their case that though original was lost they have a notarised copy. The fact
that the Defendant No.2 has in the Written Statement pleaded that it was only
a writing also cannot be lost sight of. It is also required to be noted that the
Suit had come up before the Trial Court on two intervening dates, but the loss
of the said document was not informed to the Trial Court.
17 In my view, the aforesaid circumstances therefore raise a serious
question as regards the Plaintiffs case of the loss of the said document. This is
therefore not a case where a party has to come forward with a plain and simple
case that the original has been lost on account of some reason and that
permission to lead secondary evidence is therefore prayed for. This is a case
where the Plaintiffs on the basis of the case which they have pleaded in the
said application Exhibit 53 which appears to be scripted, want to lead
secondary evidence. Hence the bonafides of the case of the Plaintiffs as pleaded
is required to be considered by this Court and on such consideration this Court
for the reasons mentioned hereinabove has come to a conclusion that the
Plaintiffs have not accounted for the alleged loss of the original of the said
document dated 542004.
The factual foundation to lead secondary evidence
therefore cannot be said to be laid by the Plaintiffs. The Plaintiffs therefore
cannot be permitted to lead secondary evidence in respect of the said
document as their case does not satisfy the requirements of Section 65 of the
Indian Evidence Act. Hence no fault can be found with the impugned order
passed by the Trial Court. The impugned order cannot be said to suffer from
any illegality or infirmity for this Court to interfere in its Writ Jurisdiction. The
Writ Petition is accordingly dismissed. Rule discharged with parties to bear
their respective costs.
[R.M.SAVANT, J]
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