Calcutta High Court (Appellete Side)

Krishna Ghosh vs Sumitra Saraf & Ors on 27 March, 2023

S/L 9
27.3.2023

Court No.652 SD CO 1053 of 2019

Krishna Ghosh Vs.

Sumitra Saraf & Ors.

Mr. Shuvasish Sen Gupta Mr. Sushouit Dutt Majumder Mrs. Ratnadipa Sarkar ... for the Petitioner.

Mr. Probal Kr. Mukherjee Ms. Shebatee Datta ... for the Opposite Parties.

Being aggrieved and dissatisfied with the order dated

07.01.2019 passed by the learned Civil Judge (Junior

Division), 2nd Additional Court, Alipore in Title Suit No.45 of

2012, present application under Article 227 of the

Constitution of India has been preferred.

The plaintiff/petitioner's contention is that the

plaintiff/petitioner filed aforesaid suit for recovery of

possession along with other reliefs in the year 2012. The

defendant/tenant/opposite parties contested the suit by

filing written statement.

On November 4, 2016, the witness of the plaintiff as

P.W.1 filed affidavit-on-evidence along with original power

of attorney and other documents before the learned Civil

Judge (Junior Division), 2nd Court at Alipore. The said filing

of the documents was marked as Sia No.11 before the said

learned court. Subsequently, said case was transferred to the

learned Civil Judge (Junior Division), 2nd Additional Court at

Alipore and it was renumbered as Title Suit No.45 of 2012.

The original affidavit on evidence as well as the original

power of attorney and other relevant documents were

misplaced while transferring the suit from the court of Civil

Judge (Junior Division), 2nd Court, Alipore to the learned

Civil Judge (Junior Division), 2nd Additional Court at

Alipore.

On February 26, 2018, the plaintiff/petitioner filed an

application under Order XXVI Rule 1 of the Code of Civil

Procedure for appointment of commissioner for recording of

the evidence of P.W.1. The defendant no.1 objected to such

application for recording of evidence by commissioner, but

the court below allowed the said application. The

commission for recording of the evidence commenced on

April 16, 2018 when a supplementary affidavit on evidence

was filed on behalf of the plaintiff as P.W.1 under Order

XVIII Rule 4 of the Code of Civil Procedure. During

examination-in-chief, the witness tendered the photocopy of

the original power of attorney and the witness categorically

stated before the court that the said photocopy has been

copied from the original document and prayed for marking

the said document, as the original document, has been

misplaced during transfer of records.

It was contended on behalf of the P.W.1 that the said

document was the photocopy of the original power of

attorney and therefore, has fulfilled the ingredients under

Section 63(3) of the Indian Evidence Act which provides that

secondary evidence means and includes copies made from or

compared with the original. Learned commissioner refused

to mark the same as exhibit expressing his inability to mark

it as an exhibit and marked it as 'X' for identification and

thereafter, the commission was continued and other

documents were duly marked as exhibits on various

occasions. However, before the closer of the examination-in-

chief, the plaintiff filed an application under Section 151 of

the Code of Civil Procedure for directing the commissioner

to mark his power of attorney as an exhibit and the said

application was contested by the defendant no.1 by filing

written objection.

By the impugned order dated January 7, 2019,

learned court below was pleased to reject the application and

directed the advocate commissioner to complete the

recording of evidence and to file a report.

Mr. Shuvasish Sen Gupta, learned counsel appearing

on behalf of the petitioner, submits that the order passed by

the court below is bad and liable to be set aside and has been

passed without considering the materials on record. The

learned court below failed to appreciate the scope of Section

63 of the Indian Evidence Act. The court below failed to

appreciate that Sia number has also been put by the court

officers and P.W.1 in his evidence has fulfilled all the

ingredients under Section 63 of the Indian Evidence Act.

He has failed to appreciate that the witness has

deposed that the photocopy of the power of attorney was

made from the original document and the same has been

misplaced from the custody of the court. Accordingly, he has

prayed for setting aside the order impugned.

Mr. Probal Kr. Mukherjee, learned counsel appearing

on behalf of the opposite parties, submits that the court

below was justified in passing the order impugned as during

evidence the opposite parties/defendants have raised

objection regarding marking the said document as exhibit

and as such, the learned commissioner had no other option

but to refer the same to the court below for disposal. In this

context, he has referred to Order XXVI Rule 16A of the Code

of Civil Procedure.

He further submits that the other documents filed by

the plaintiff were with the record and it is not

understandable how the power of attorney has been

detached from the bunch of documents while the aforesaid

transfer was made from one court to another. Accordingly,

court below was quite justified to reject the

plaintiff/petitioner's prayer under Section 151 of the Code

and made specific direction to conclude the evidence.

I have considered the submissions made on behalf of

the parties.

On perusal of the evidence of P.W.1, it is quite

apparent that the P.W.1 in his evidence has categorically

stated that the concerned document is the xerox copy of the

original document and the original document has been

misplaced from the custody of the court and the advocate for

the plaintiff submitted before the commissioner for marking

the said document as exhibit. From the evidence, it also

appears, when the witness was asked as to whether he finds

any signature of the executor in the document, he submitted

that there are two signatures one by Krishna Ghosh and

other by Kamal Kumar Pal.

He also identifies the signature of Krishna Ghosh,

Sunita Agwaral and Kamal Kumar Pal. It further appears

that the learned court below while rejecting the said

application was pleased to observe that the document

concerned is a mere photocopy of power of attorney, not

even compared with the original one. Therefore, there is big

doubt to call this document as secondary evidence.

Moreover, secondary evidence of document can be allowed

only when original is proved to have existed but was lost or

misplaced. However, from the incomplete oral evidence of

P.W.1, the court below finds that the fact that the original

has been lost or misplaced is not established and he refused

to mark the document as exhibit.

In this context, it is to be mentioned that Section

63(3) of the Indian Evidence Act clearly stipulates that

secondary evidence means and includes copies made from or

compared with the original. Illustration (a) of Section 63

provides that a photograph of an original is secondary

evidence of its contents, though the two have not been

compared, if it is proved that the thing photographed was

the original.

In the present case, there is no scope to compare the

photocopy with the original as the original has been lost

according to the plaintiff's case and P.W.1 has categorically

stated before the court that the 'photographed document'

was photographed from the original. Accordingly, learned

court below was not justified in holding that as because it

had not been compared with the original, so Section 63 of

the Indian Evidence Act does not attract in the present case.

In the case of The Commissioner of Wakfs, West

Bengal vs. Khan Jah Shahibzada Syed Kazim Ali

Murza & Anr. reported in 1954 SCC Online Cal 126 it

was held as follows:-

"8. It is quite clear that copies made from the original even though not compared with the original, as also copies which are compared with the original are deemed to be secondary evidence. Copy of a document will not ordinarily be admissible in evidence, but if such a copy be compared with the original and evidence is adduced to prove the same such a copy will be admissible in evidence. If it is proved further that copies had been made from the original without any proof that they had been compared with the original, they will be accepted as secondary evidence. The evidentiary value of particular papers or documents proved in either of the two ways would depend upon the circumstances and on the facts proved. We are not concerned with the value of such papers as evidence, but only whether they are admissible as secondary evidence. Illustration (c) of section 63 of the Indian Evidence Act makes the position clear."

In another judgment of Patna High Court in the case

of Harijiwan Sahu vs. Jairam Sahu and Ors., it was

held that Sub-section (3) of Section 63 does not require that

it must be proved that the copies were made from the

original as well as compared with the original. Since the

evidence on record clearly shows that the said document was

made from the original and P.W.1 has stated that it is a true

copy, the legal requirement has been fulfilled and this will

not affect the legal validity of the said power of attorney as

secondary evidence of the original document.

Considering the same, CO 1053 of 2019 is hereby

disposed of with a direction upon the court below to hear