Ram Das Singh And Another vs Duli Chand
2013 Latest Caselaw 1011 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34
 

 
Case :- SECOND APPEAL No. - 344 of 2013
 
Appellants :- Ram Das Singh And Another
 
Respondent :- Duli Chand
 
Appellants Counsel :- Ashok Mehta,Pradeep Singh Sisodia
 
Respondent Counsel :- Raj Kumar
 

 
Hon'ble Sudhir Agarwal,J.

1. Heard Sri Ashok Mehta, learned counsel for the appellants and Sri Raj Kumar, Advocate for the respondents. Since all the parties are represented, hence as requested and agreed, I proceed to decide this appeal finally at this stage.

2. The substantial question of law, which has arisen in this case is:

A. Whether Lower Appellate Court was justified in admitting a document namely paper no.7C/5, photocopy of a map, alleged to have been prepared by Lekhpal of Village Hindalpur having complied with requirement of  Section 65/66 of Indian Evidence Act, 1872.

3. Before Trial Court, aforesaid document was neither sought to be relied by plaintiff nor there was any occasion for it to look into the aforesaid document. The suit was dismissed by Trial Court vide judgment dated 21st July, 2011 deciding issues no.2 and 3 against plaintiff and issue no.1 in favour of defendants-appellants. However, the aforesaid judgment and decree of Trial Court has been reversed by Lower Appellate Court vide judgment and decree dated 16th January, 2003 passed by lower Appellate Court i.e. Additional District Judge, Court No.1, Ghaziabad, which is impugned in this appeal.

4. Lower Appellate Court has proceeded in a strange manner. On one hand, in para 19, it has discussed that Trial Court has not considered paper no.109-C. If the aforesaid document was not admissible in evidence, even then findings ought to have been recorded by Trial Court in this regard but it had failed in both the ways that neither it has considered the said document nor it has discussed and held that aforesaid document was not admissible in evidence. Having said so, Lower Appellate Court itself has not discussed and considered aforesaid document and its consequence on the dispute in case but proceeded to look into a new document namely paper no.7-C/5 which was an alleged revenue map of Village Hindalpur and a photocopy thereof was produced. Lower Appellate Court has held that since primary evidence was not adduced, the aforesaid document, as a secondary evidence, was admissible and in this regard has observed that plaintiff sought to obtain a certified copy of the aforesaid documents from revenue records but the same was not supplied by concerned authorities. The plaintiff also submitted an application no.105-C before Trial Court requesting it to summon the aforesaid revenue map from the concerned Lekhpal but the application was rejected by Trial Court by order dated 11.2.2011. It is in these circumstances, plaintiff-respondent adduced copy of aforesaid map in the form of a photocopy/ Xerox copy and the same was admissible being a secondary evidence under Section 65 read with Section 66 of Indian Evidence Act, 1872 (hereinafter referred to as "Act, 1872").

5. The question, whether Lower Appellate Court was justified in admitting aforesaid secondary evidence or not, inasmuch as, in paras 20 and 21, the aforesaid document itself has been held to be foundation for recording findings of reversal and in case such document as secondary evidence was inadmissible, entire edifies of judgment of lower appellate court would fall.

6. Learned counsel for the plaintiff-respondent stated that document in question comes within the ambit of Section 65(c) of Act, 1872. Section 65 of Act, 1872 read as under:

Section 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) 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;

(d) when the original is of such a nature as not to be easily movable;

(e) when the original is a public document within the meaning of section 74;

(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence;

(g) when the original consists of numerous accounts or other documents which cannot conveniently be examined in Court and the fact to be proved is 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, is 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.

7. However, I find no force in the submission. It is alleged that map in question is a revenue map prepared under the provisions of U.P. Land Revenue Act, 1901 (hereinafter referred to as "Act, 1901"). Such a document would qualify to be a "public document" within the meaning of Section 74 of Act, 1872 which reads as under:

"Public documents.- The following documents are Public documents :-

(1) documents forming the acts, or records of the acts--

(i) of the sovereign authority,

(ii) of official bodies and tribunals, and

(iii) of public officers, legislative, judicial and executive of any part of India or of the Commonwealth, or of a foreign country;

(2) Public records kept in any State of private documents."

8. Considering the map prepared for revenue purposes Privy Council in Tarakdas Acharjee Choudhury and Ors. Vs. Secretary of State & Ors. AIR 1935 PC 125 followed earlier decisions in Jagadindra Vs. Secretary of State, 30 IA 44 and Abdul Hamid Vs. Kiran Ch, 7 CWN 849 observed that maps and surveys for revenue purposes, are official documents prepared by competent persons, and with such publicity and notice to persons interested, as to be admissible and contain valuable evidence of the state of things at the time they are made. They are not conclusive and may be shown to be wrong but in absence of evidence to the contrary, they may be judicially received in evidence as correct when made. The map prepared under the authority of Government, therefore, would qualify the definition of "public document" under Section 74 of Act, 1872.

9. That being so, vide Section 65(e) read with subsequent clarification, no other kind of secondary evidence except certified copy of document could have been admissible.

10. Admittedly, in the case in hand, document in question was not a certified copy of the revenue map prepared by revenue authorities under relevant statute so as to qualify to be a public document under Section 74 of Act, 1872, in respect whereto it could have been admissible as a secondary evidence vide Section 65(e) of Act, 1872. In the case in hand, it is a Xerox copy of an alleged revenue map, which was not a certified copy. What a secondary evidence would be, has been noticed in Section 63 of Act, 1872, which reads as under:

"Secondary evidence - Secondary evidence means and includes -

(1) certified copies given under the provisions hereinafter contained;

(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 document given by some person who has himself seen it.

11. It has not been explained anywhere that Xerox copy of alleged revenue map was prepared and obtained by plaintiff-respondent so as to qualify to be a secondary evidence as stated in Section 63. In Smt. J.Yashoda Vs. Smt. K.Shobha Rani, (2007) 5 SCC 730, the Court has held that Section 63 is exhaustive in so far as it declares secondary evidence for the purpose of Act, 1872. The Court says:

" 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."

12. It further observed that 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 files it to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contents. 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 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 one's possession or may be reached by him, he shall give, no inferior proof in relation to it.

13. Then referring to Section 65, the Court said that it deals with the proof of the contents of the document 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 for 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.

14. In Ashok Dulichand Vs. Madahavla Dube & Anr., AIR 1975 SC 1748, the Court considered Section 65(a) of Act, 1872 and said:

"....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 the notice mentioned in Section 66 such person does not produce it."

15. The Court thereafter declined to admit secondary evidence by observing:

"....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."

16. In P.K.Gupta Vs. Varinder Sharma, AIR 2002 P & H 342, with reference to Section 65(c) of Act, 1872, the Court said that secondary evidence of existence, condition or contents of a document can also be adduced when the party offering evidence of its contents cannot produce the original in reasonable time. But such a delay in production of the document should not have arisen from the fault or neglect of the party who wish to adduce secondary evidence of the document. The Court also said:

"...To succeed in getting permission to adduce secondary evidence it must be shown that the document was in existence which was capable of being proved by secondary evidence and secondly proper foundation must be laid to establish the right to adduce secondary evidence."

17. The principle underlying secondary evidence is well known with regard to proof of facts that best evidence must come before the Court. The best evidence, which, of course, is the original document would furnish an opportunity to the Court to examine various surrounding facts attached with the original alone like the voraciousness of the signatures of the parties, the age of the document and other host of factors depending on the facts of each case. It is in absence of the best evidence, the secondary evidence is permitted to be adduced. The objective being judicial investigation by Court to fathom the truth. It is for this reason that the law although insists upon production of the best evidence i.e. the original document yet it permit with proper safeguards production of secondary evidence of the original if certain conditions are satisfied, namely, the existence of the document which might have been lost or destroyed or the party in whose possession the original is shown or appears to be have refused to produce it before the Court despite notice or its existence, condition or contents have been proved to be admitted in writing so on and so forth. The rule regarding secondary evidence is not an open rule allowing any piece of photostat copies or an oral account of the original and the likewise to be tendered as secondary evidence.

18. In T.Mohan Vs. Kannammal & Anr., JT 2002 (2) SC 163, the Court held that secondary evidence could be received as genuine if the existence of the document is admitted.

19. In K. Krishna Appala Naidu Vs. B. Sohanlal & Ors., AIR 2004 AP 439, in the context of Section 65 and 66 of Act, 1872, the Court said that principle that as long as the original exists and is available, it being the best evidence, must be produced, is engrafted in the Section. The secondary evidence is admissible only in the absence of primary evidence. The Section provides for an alternative method of proving contents of a document, which for various reasons, cannot be produced in evidence. Where original document is in existence, but not produced, secondary evidence by production of copies is not admissible unless conditions are satisfied. The provision has been designed to provide protection to persons who, in spite of their best efforts, are unable to, for the circumstances beyond their control, to place before the Court, primary evidence of a document as required by law. Secondary evidence should not and cannot be allowed unless the circumstances exist to justify as provided under Act, 1872. Further, if the document is to be admitted in secondary evidence, the facts thereof have to be proved. The certified copy of the original can be treated as secondary evidence. But the contents of the documents sought to be marked as secondary evidence cannot be admitted in evidence without production of the original document. Under no circumstances can secondary evidence be admitted as a substitute for inadmissible primary evidence.

20. Under what circumstances the secondary evidence relating to document must be proved by primary evidence is an exception to the cases falling under Sections 65 and 66 of Act, 1872. The person seeking to produce secondary evidence relating to a document can do so only when the document is not in his possession. To enable a person to take recourse to Sections 65 and 66 of Act, 1872, it would be necessary to establish that the document sought to be summoned was executed and that the said document is not with him, but in possession of the person against whom the application is made to be produced for proving against him.

21. In the present case, it does not appear that Court below cared to observe, follow and comply conditions precedent before entertaining secondary evidence and that too making the foundation to record a finding crucial to decide the entire plaint case in a particular manner i.e. in favour of plaintiff. It has not been stated anywhere and atleast nothing is available from record as to how and when plaintiff had any occasion to obtain a photostat copy of revenue map, who allowed him to obtain it and wherefrom he got it. There was nothing to prove its authenticity also but the Court below, in a very indiscreet manner, has admitted and believed the said document, to record a finding on a substantial disputed fact, so as to form inference in a particular way.

22. There is one more aspect that whenever a secondary evidence is to be admitted, very existence of such a document has to be established.

23. Next is the question that even when a secondary evidence is admitted, unless a formal proof thereof is dispensed with under any provision of statute, such a document has to be proved otherwise also it is not admissible. In the present case, Lower Appellate Court while entertaining Xerox copy of alleged revenue map has completely ignored all the aforesaid procedure. Though it has admitted additional evidence at the stage of appeal but without satisfying requirement of law with regard to admission of secondary evidence as also its proof. Such document could not have been read in evidence.

24. In view of above, I find it difficult to sustain judgment and decree of Lower Appellate Court founded on a document i.e. paper no.7C/5.

25. The appeal is allowed. The appellate judgment dated 16th January, 2013 is set aside. The matter is remanded to Lower Appellate Court to decide appeal after excluding document filed as paper no. 7C/5 or unless parties satisfy requirement of Sections 65 and 66 in respect to aforesaid document, afresh, in accordance with law.

Order Date :- 17.4.2013

KA