$~A-31
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 18.04.2012
+ CM(M) 1220/2007
INDIA INFORMATION TECHNOLOGY LTD.
..... Petitioner
Through: Mr.A.J.Bhambhani, Advocate.
versus
ANIL SHARMA & ORS. ..... Respondents
Through: Mr.V.K.Diwan, Advocate for R-
1.
Mr.Ajay Kapur, Sr.Advocate with
Ms.Seema Sundd for R-2.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. (Oral)
1 Order impugned is the order dated 13.8.2007; the application filed by the petitioner under Section 65 of the Evidence Act seeking permission of the court to lead secondary evidence had been declined. 2 Record shows that the present suit is a suit for recovery filed by the erstwhile employer of Anil Sharma against the petitioner/defendant CM(M) No.1220/2007 Page 1 of 4 seeking recovery of certain monies which were due to the plaintiff from his employer. Written statement had been filed by the defendant along with which photocopies of certain documents had also been filed which were the same photocopies which were now sought to be proved through secondary evidence. Prior to the filing of the application under Section 65 of the Indian Evidence Act, notice under Section 66 of the said Act dated 16.4.2007 had been issued to M/s IndusInd Media Pvt. Ltd.; details of the documents of which secondary evidence is sought to be proved are contained in para 5 of the said application. Contention of the defendant was that certain assets of defendant no.1 had been sold to M/s IndusInd Media Pvt. Ltd. in the year 1999-2000 and original document documents were handed over at that time by the defendant to M/s IndusInd Media Pvt. Ltd.. The aforenoted documents are lying with the said company; the photocopies of the said documents were filed along with the written statement but since the originals were not with the defendant the same could not be proved in evidence. Accordingly the present application had been filed.
3 Section 65 of the Evidence Act pre-supposes that where the original documents either have been destroyed or lost or for any reason CM(M) No.1220/2007 Page 2 of 4 not arising from the default or negligence on the part of the applicant and he cannot produce the original documents, the application under Section 65 for proving the said documents by secondary evidence is permissible .
4 Admittedly these documents which are the subject matter of the present application (u/S 65 of the Evidence Act) had been filed by the defendant along his written statement; all along his contention was that these documents in the course of the sale of the assets by defendant no.1 to M/s IndusInd Media Pvt. Ltd., the said documents had been transferred to the said company; that is why the aforenoted application was filed. All the requirements of the Section 65 of the Evidence Act have been fulfilled. The impugned order declining the prayer made in the aforenoted application accordingly suffers from an infirmity. It is set aside.
5 One opportunity is granted to the defendant to lead his secondary evidence. It is made clear that only opportunity shall be granted for the said purpose and no other opportunity shall be granted for the said purpose.
6 At this stage learned counsel for the petitioner states that since the CM(M) No.1220/2007 Page 3 of 4 matter is very old and is lying in the cold storage some long date may be granted in order that he may be enable to get the documents produced from M/s IndusInd Media Pvt. Ltd. Parties to appear before the trial court on 16.7.2012 for allowing the defendant to adduce secondary evidence.
7 Counsel for the respondent states that the matter is more than 16 years old and a direction be also given to the trial court to expeditiously dispose of the case. Accordingly trial court is directed to dispose of the case as expeditiously as possible. Petition is disposed of in the above terms.
INDERMEET KAUR, J APRIL 18, 2012 nandan CM(M) No.1220/2007 Page 4 of 4