Delhi High Court
Milestone Trade Links vs Yamuna Industries Ltd & Ors on 23 February, 2018
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 611/2016
MILESTONE TRADE LINKS ..... Plaintiff
Through Mr. Pankaj Bhagat, Advocate
versus
YAMUNA INDUSTRIES LTD & ORS ..... Defendants
Through Mr. S.K. Gandhi with Mrs. Manjula
Gandhi and Mr Shivanshu Kumar,
Advocates
% Date of Decision: 23rd February, 2018.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J: (Oral)
I.A. 2883/2017
1. Present application has been filed under Order 11 Rule 4 of the
Commercial Courts, Commercial Division and Commercial Appellate
Division of High Courts, 2015 (for short "Act, 2015") read with Section 151
CPC seeking permission to file additional documents and for leading
secondary evidence under Section 65 of the Indian Evidence Act, 1872 (for
short "Act, 1872").
2. Learned Joint Registrar vide order dated 7th March, 2017 has held that
no permission to lead secondary evidence under Section 65 of the Act, 1872
is required.
3. Learned counsel for the defendants submits that Order 11 Rule 4 of
the Act, 2015 deals with admission and denial of documents and does not
empower this Court to take the documents on record at this belated stage.
4. He further submits that a Division Bench of this Court in D.D.A. and
Ors. Vs. Ram Kaur and Ors., MANU/DE/1069/2017 has held that a party is
permitted to adduce secondary evidence subject to a number of limitations.
The relevant portion of the judgment relied upon by learned counsel for the
defendants is reproduced hereinbelow:-
"48. Discussing Section 65 of the Indian Evidence Act, the
Supreme Court in the case B.B. Ayesha vs. Bihar SSM Avaquaf
MANU/SC/0376/1968 : AIR 1969 SC 253, held that in Sections
65(a) to (c), any secondary evidence is admissible and in terms
of Sections 65(e) and (f), only certified copies are admissible.
From the provisions of Sections 62, 64 and 65, it is apparent that
the contents of a document can be proved either by the
production of the document itself or by secondary evidence in the
eventualities covered under Clauses (a) to (g) of Section 65. The
Court has in a recent judgment H. Siddiqui (dead) by LRs. versus
A. Ramalingam MANU/SC/0174/2011 : (2011) 4 SCC 240 has
discussed admissibility of Secondary Evidence and has held as
under:
12. "The provisions of Section 65 of the 1872 Act provide
for permitting the parties to adduce secondary evidence.
However, such a course is subject to a large number of
limitations. In a case where the original documents are
not produced at any time, nor has any factual foundation
been laid for giving secondary evidence, it is not
permissible for the court to allow a party to adduce
secondary evidence. Thus, secondary evidence relating to
the contents of a document is inadmissible, until the non-
production of the original is accounted for, so as to bring
it within one or other of the cases provided for in the
section. The secondary evidence must be authenticated by
foundational evidence that the alleged copy is in fact a
true copy of the original. Mere admission of a document
in evidence does not amount to its proof. Therefore, the
documentary evidence is required to be proved in
accordance with law. The court has an obligation to
decide the question of admissibility of a document in
secondary evidence before making endorsement thereon.
(vide Roman Catholic Mission v. State of Madras
MANU/SC/0253/1966 : AIR 1966 SC 1457, State of
Rajasthan v. Khemraj, MANU/SC/0857/2000 : (2000) 9
SCC 241, LIC vs. Ram Pal Singh Bisen,
MANU/SC/0170/2010 : (2010) 4 SCC 491 and M.
Chandra v. M. Thangamuthu, MANU/SC/0721/2010 :
(2010) 9 SCC 712)"
5. A Coordinate Bench of this Court in Prem Chandra Jain (Deceased)
represented by Lr's Shri Bharat Bhushan Jain, Advocates & Others Vs.
Sri Ram (Deceased) Represented By Lr's Shri Sunil Kumar Arora &
Others, 2009 (113) DRJ 617 has held that neither the Act, 1872 nor Code of
Civil Procedure requires filing of an application under Section 65 of the Act,
1872. However, needless to say, if the plaintiff wishes to lead secondary
evidence, it will have to follow the mandate of law as prescribed by the
Division Bench in D.D.A. and Ors. Vs. Ram Kaur and Ors. (supra)
6. Undoubtedly, plaintiff has filed the present application under a wrong
provision of law. However, it is settled law that wrong nomenclature would
make no difference, provided the Court has the power to grant the relief.
7. Admittedly, in the present case, the Court has power under Order 11
Rule 1(5) Act, 2015 to take on record additional documents beyond the time
prescribed if reasonable cause is established.
8. This Court in view of the reasons disclosed in the present application,
grants leave to the plaintiff to place on record the said documents.
9. Accordingly, present application is allowed and the documents are
taken on record.
10. However, legality and validity of the said documents would have to
be proved in accordance with Section 65 of the Act, 1872.
CS(COMM) 611/2016
Plaintiff is directed to file its evidence by way of affidavits within
four weeks.
List the matter before the Joint Registrar for plaintiff's evidence on
26th April, 2018.
MANMOHAN, J
FEBRUARY 23, 2018
rn
