Delhi High Court
Shir Prem Chandra Jain (Deceased) ... vs Shri Sri Ram (Deceased ... on 12 October, 2009
Author: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 1764-66/2005.
Date of decision:12th October, 2009
SHIR PREM CHANDRA JAIN (DECEASED)
REPRESENTED BY LR's SHRI BHARAT BHUSHAN JAIN,
ADVOCATE & OTHERS ..... Petitioners
Through: Mr. V.K. Srivastava, Advocate.
Versus
SHRI SRI RAM (DECEASED)
REPRESENTED BY LR'S SHRI SUNIL KUMAR ARORA
& OTHERS ..... Respondents
Through: Mr. Yogindra Nath, Advocate for the
Respondent No.1.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment? Yes
2. To be referred to the reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. This petition under Article 227 of Constitution of India is preferred with respect
to the order dated 8th July, 2005 dismissing the application, of the petitioner/plaintiff
before the Trial Court, under Section 65 of the Indian Evidence Act for permission to
lead secondary evidence with respect to a Will and a demarcation report by the Revenue
Authorities of which certified copy is stated to have been filed. The Trial Court has
dismissed the application for the reason that the petitioner had stated that the originals are
not traceable; it was held that for Section 65 to be invoked, document has to be lost.
2. A practice appears to have developed in the Trial Courts of moving an application
under Section 65 of the Evidence Act seeking permission of the courts to adduce
secondary evidence. There does not appear to be any sanction therefor in law. Neither the
Evidence Act nor the CPC nor any other rules & regulations or statute requires the filing
of such an application.
3. Section 61 of the Evidence Act provides for proof of documents either by primary
or by secondary evidence. Section 64 provides that documents must be proved by
primary evidence, except in cases "hereinafter mentioned" i.e. in Section 65 & Section 65
A and Section 65 B. Section 65 permits secondary evidence to be led in the contingencies
mentioned therein. Thus a litigant without seeking any permission from the court if
satisfies the ingredients of Section 65 of the Evidence Act i.e. of the existence of the
contingency or situation when secondary evidence is permitted to be led is entitled to lead
such evidence. Such evidence will have to be two fold. Firstly, as to the existence of the
contingency or situation in which secondary evidence is permissible, viz that the original
document is in possession or power of the person against whom it is sought to be proved
etc. or that the existence, condition or contents of original have been proved to be
admitted by person against whom it is sought to be proved or that the original has been
lost or destroyed or when original is not moveable etc. i.e. of the various situations
mentioned in Clause (a) to (g) of Section 65. Secondly, such evidence will have to be in
proof of document as also prescribed in Section 65 r/w Section 63.
4. It is only after such evidence has been led can the court form an opinion whether
the circumstances/situation in which it is permissible to lead secondary evidence exist or
not. For instance, whether a document has been lost or destroyed is a question of fact. It
is only after the person claiming so has been cross examined, can a decision be taken as
to the existence and loss or destruction of the original.
5. The court, on an application seeking permission to lead secondary evidence, even
if setting out reasons as contained in either of the clauses of Section 65, cannot take a
decision on the correctness of the reasons. The application thus serves no purpose except
delaying the proceedings. It is however often found that the courts allow or disallow the
applications, without giving an opportunity to the parties for laying a foundation for
reception or rejection of secondary evidence. Such procedure is impermissible in law.
Factual controversies cannot be adjudicated on applications. That is however not to be
understood as allowing a mini-trial on this aspect. The party seeking to prove document
by secondary evidence is to lead evidence of the existence of circumstances/situations in
which secondary evidence is permissible, during leading its evidence, whether by way of
examination of witnesses or cross examination of opponents witnesses, in the suit/other
proceeding itself. It will be decided at the stage of disposal of suit only, whether case for
leading secondary evidence has been made out or not and if so, whether document stands
proved by secondary evidence.
6. As far as the reasoning given by the Trial Court in the present case is concerned,
the trial court has understood the word "lost" in Section 65 as "irretrievably lost"; thus
the plea of the petitioner of the document being "untraceable" has been held to be not a
plea of "lost" and thus not covered by Section 65.
7. The meaning of lost in the Black's Law Dictionary 6th Edition is "An article is
lost when the owner has lost the possession or custody of it, involuntarily and by any
means, but more particularly by accident or his own negligence or forgetfulness, and
when he is ignorant of its whereabouts or cannot recover it by an ordinarily diligent
search".
8. This court in Laiqan Begum Vs. Abdul Hamid MANU/DE/0203/1979 held that
"not traceable" or "lost", both enable the invocation of secondary evidence under Section
65 of the Act. I am also of the opinion that for invocation of Section 65, it is not
necessary to take a stand that the document is lost, so as never to be found. It is sufficient
to prove that the document is not available at the relevant time and its whereabouts are
unknown then.
9. Even, otherwise as far as the Will is concerned I find that even for the purposes of
probate, Sections 237 & 238 of the Indian Succession Act permit the grant of probate of
the contents of a lost or destroyed Will even, when the same is established by evidence.
10. The counsel for the respondents has contended that the reliance by the petitioner
on the old demarcation report is misconceived and the demarcation can be carried out
even now. However, this court, at this stage, is not concerned with the weight to be given
to the evidence or the veracity of the evidence and it shall remain open to the respondents
to take the requisite pleas before the Trial Court.
11. The order impugned in the aforesaid circumstances cannot be sustained and is set
aside. The petitioner while leading his evidence would be free to prove the documents
either through primary or through secondary evidence.
CM APPL. No.11132/2005 (u/S 151 CPC for stay) & CM A. No.4149/2006 (of
petitioner u/O 11 Rule 1&2 CPC).
With the disposal of the main petition, all pending applications have become
infructuous and are disposed of.
RAJIV SAHAI ENDLAW, J
October 12, 2009
PP
