India Information Technology Ltd vs Anil Sharma & Ors
2012 Latest Caselaw 2522 Del

$~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

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

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

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