Delhi High Court
S Gurbachan Singh & Ors. vs Geeta Issar on 12 April, 2023
Neutral Citation Number 2023:DHC:2621
$~64
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 12.04.2023
+ CM(M) 576/2023
S GURBACHAN SINGH & ORS ..... Petitioner
versus
GEETA ISSAR ..... Respondent
Advocates who appeared in this case:
For the Petitioner : Mr. Nitin Mittal, Advocate alongwith
Mr. Kuljeet Singh, AR
For the Respondent : Mr. Rishi Sood, Advocate
CORAM:
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA
JUDGMENT
TUSHAR RAO GEDELA, J. (ORAL)
[ The proceeding has been conducted through Hybrid mode ]
CM APPL. 17463-64/2023
1. Exemption is allowed, subject to all just exceptions.
2. The applications stand disposed of.
CM APPL. 17465/2023
3. This is an application seeking exemption from filing the Trial
Court record.
4. At this stage, there is no requirement to summon the Trial Court
record.
5. The application is disposed of accordingly.
Signature Not Verified
Digitally Signed
Signing Date:19.04.2023
14:53:42
Neutral Citation Number 2023:DHC:2621
CM(M) 576/2023 & CM APPL. 17462/2023 (Stay)
6. The petitioner challenges the order dated 21.02.2023 passed in
RC/ARC No. 5210/2016 titled Geeta Issar vs. S. Gurbachan Singh,
whereby the petitioners have been directed to cross-examine the witness
of the respondent before the Local Commissioner on the basis of the
photocopies of the documents, the originals whereof have been
permitted to be filed subsequently.
7. Mr. Nitin Mittal, learned counsel appearing for the petitioner
submits that the procedure as stipulated vide the impugned order is a
unique procedure inasmuch as even before the original documents have
been produced before the learned Trial Court or the Local
Commissioner, the Court is expecting the petitioner to conduct cross-
examination on those photocopies.
8. Learned counsel further submits that the learned Trial Court has
also given the permission to the respondent to file those original
documents of the photocopies at a subsequent stage. Learned counsel
submits that this procedure is contrary to Section 62 of the Indian
Evidence Act, 1872 (hereinafter as "Evidence Act") and the cross-
examination cannot take place on the basis of photocopies.
9. Learned counsel submits that the impugned order is a gross
violation of the procedural norms and ought to be interfered with by this
Court under Article 227 of the Constitution of India.
10. Per Contra, Mr. Rishi Sood, learned counsel appearing for the
respondent submits that the learned Trial Court had considered the
reasons of medical issue of the husband of the petitioner and also to
ensure that there is no delay or protraction of trial, that the learned Trial
Signature Not Verified
Digitally Signed
Signing Date:19.04.2023
14:53:42
Neutral Citation Number 2023:DHC:2621
Court has passed such direction.
11. Learned counsel further submits that the cross-examination, if
any, on the basis of the photocopies is obviously subject to the
production of the original documents by the respondent and therefore,
no prejudice would be caused to the petitioner by cross-examining the
witness of the respondent.
12. Learned counsel submits that it is well settled law that the issues
would be decided only on the basis of original documents and not
otherwise and as such learned counsel submits that the impugned order
is sustainable in law.
13. This Court has heard the arguments and has perused the
impugned order placed on record.
14. It would be apposite at the outset to extract the provisions of
Section 62 of the Evidence Act hereunder:-
"62. Primary evidence.--Primary evidence means the
document itself produced for the inspection of the Court.
Explanation 1.--Where a document is executed in several
parts, each part is primary evidence of the document;
Where a document is executed in counterpart, each
counterpart being executed by one or some of the parties
only, each counterpart is primary evidence as against the
parties executing it.
Explanation 2.--Where a number of documents are all
made by one uniform process, as in the case of printing,
lithography, or photography, each is primary evidence of
the contents of the rest; but, where they are all copies of a
common original, they are not primary evidence of the
contents of the original. Illustration A person is shown to
have been in possession of a number of placards, all
printed at one time from one original. Any one of the
Signature Not Verified
Digitally Signed
Signing Date:19.04.2023
14:53:42
Neutral Citation Number 2023:DHC:2621
placards is primary evidence of the contents of any other,
but no one of them is primary evidence of the contents of
the original."
From the aforesaid as also from the catena of judgments in respect
of what a primary document would constitute, it goes without saying
that only original documents constitute primary evidence and those
photocopies which are otherwise proved by way of secondary evidence
may also form substantial evidence which can, not only be proved but
also be relied upon by the parties in a lis.
15. A perusal of the impugned order brings to fore the fact that the
procedure as directed is contrary to Section 62 itself, as also to the law
in that regard inasmuch as the cross-examination is a vital right of the
party where the party is entitled to not only discredit the witness but also
demolish the case of the other side on the basis of the documents also.
It is well settled law that photocopies are inadmissible in evidence
unless they are proved in accordance with Section 63 and 65 of the
Evidence Act.
16. Having regard to the fact that no such occasion for proving
documents by secondary evidence had arisen at all, the question of
directing the petitioner to cross-examine the witnesses of the respondent
on the basis of photocopies is absolutely contrary to the procedure
known to law.
17. Another aspect which has to be considered is that in case after the
cross-examination has been conducted by the petitioner, the respondent
is unable to produce some documents in original, the cross-examination
so far as those documents are concerned would become otiose and
rendered nugatory.
Signature Not Verified
Digitally Signed
Signing Date:19.04.2023
14:53:42
Neutral Citation Number 2023:DHC:2621
18. This possibly cannot be the intent of the legislature while granting
the right to cross-examine a witness to conduct cross-examination on
speculative documents, which are yet to be determined as to whether
they are admissible or inadmissible in law.
19. The procedure directed by the learned Trial Court is alien to law
and is unsustainable as such. The impugned order cannot withstand a
judicial scrutiny and is set aside.
20. The learned Trial Court is directed to ensure that the originals of
the documents relied upon by the respondent are brought on record. The
proper procedure, thereafter, be followed before the same are made part
of the record, on which the cross-examination by the petitioner is to
commence.
21. Till the time the aforesaid exercise is carried out, the learned Trial
Court shall not pass any direction for conducting cross-examination of
any witness of the respondent.
22. At this stage, learned counsel for the respondent submits that the
original documents in possession of the respondent would be produced
and placed on record before the learned Trial Court on 09.05.2023 when
the matter is stated to be fixed.
23. In that view of the above matter, the petition and pending
application is disposed of with no order as to costs.
TUSHAR RAO GEDELA, J.
APRIL 12, 2023
Aj
Signature Not Verified
Digitally Signed
Signing Date:19.04.2023
14:53:42
