Himachal Pradesh High Court

Bharti Sharma vs K. Shobha Rani on 21 October, 2022

Bench: Sandeep Sharma

                                                                        REPORTABLE

              IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                         ON THE 21ST DAY OF OCTOBER, 2022

                                          BEFORE




                                                                          .
                      HON'BLE MR. JUSTICE SANDEEP SHARMA





                            CIVIL REVISION NO. 143 OF 2022
    Between:-





    1.       BHARTI SHARMA
             W/O LATE SHRI SURRENDER KUMAR,
             AGE 48 YEARS

    2.       POOJA SHARMA,





             19 YEARS
             D/O LATE SHRI SURRENDER KUMAR,
             BOTH RESIDENTS OF
             VPO MAWA KAHOLAN,
             TEHSIL GHANARI, DISTRICT UNA, H.P.,
                            r                            PETITIONERS/PLAINTIFFS

    (BY MR. AJAY SHARMA, SENIOR ADVOCATE WITH
    MR. ATHARV SHARMA, ADVOCATE)

    AND



    1.       NARESH KUMAR
             S/O SHRI TIRATH RAM,




    2.   RAHUL SHARMA
         S/O SHRI VIJAY KUMAR
         SON OF JASWANT RAI,





         BOTH RESIDENTS OF VPO MAWA KAHOLAN,
         TEHSIL GHANARI, DISTRICT UNA, H.P.
                                       RESPONDENTS/DEFENDANTS





    (BY MR. Y.P. SOOD, ADVOCATE)


         This petition coming on for orders this day, the court passed the following:

                                        O R D E R

Instant civil revision petition filed under S.115 CPC lays

challenge to order dated 4.8.2022 passed by learned senior sub judge, Court

No. 1, Amb, District Una, Himachal Pradesh in Civil Suit No. 118-112-I-

XVI(Annexure P-3), whereby an application having been fled by the

respondents/defendants (hereinafter, 'defendants') under S. 65 of the Indian

Evidence Act read with S.151 CPC, seeking therein permission to prove Will

dated 29.5.2014, by leading secondary evidence, came to be allowed.

2. Precisely, the facts of the case as emerge from the record are that the

petitioners/plaintiffs (hereinafter, 'plaintiffs') filed a suit for declaration that they

are owner-in-possession qua share of deceased Surender Kumar in the

property described in the plaint. Aforesaid plea came to be made on the basis

that the suit property is joint Hindu family coparcenery ancestral property and

alleged Will executed by late Surender Kumar is bad in law. Aforesaid suit

filed by the plaintiffs came to be opposed on behalf of the defendants on the

ground that they are owner-in-possession of the suit land on the basis of Will

dated 29.5.2014, executed by late Surender Kumar in their favour.

Defendants specifically denied the allegation that the Will sought to be relied

upon by them is the result of coercion and fraud. During pendency of the suit

and before conclusion of the evidence, defendant No. 2 filed an application

under S. 65 of the Indian Evidence Act, seeking permission to lead secondary

evidence with regard to registered Will dated 29.5.2014 (Annexure P-1). In the

aforesaid application, defendants averred that though the plaintiffs have filed

suit for declaration, claiming themselves to be owner of the suit property on

the basis that the suit land is joint Hindu family coparcenery property under

Mitakshara Hindu Law but the person, who is owner of joint Hindu family

coparcenery ancestral property has already partitioned the suit land between

the predecessor-in-interest of late Surender Kuamr, who bequeathed his

share in favour of the defendants. Defendants also claimed in the application

that they are exclusive owner-in-possession of the property of late Surender

Kumar on the basis of Will dated 27.5.2014, registered on 29.5.2014 vide

Wasika No. 211. Defendants stated in the application that the main

controversy in the matter is with regard to execution of Will dated 29.5.2014

by the deceased Surender Kumar, photocopy of certified copy whereof is

already filed. It is stated by the defendants that as per law of evidence, its

original is required. Defendants stated in the application that the original of the

same was given by them to the Patwari Halka for entering mutation but now

their counsel has informed that he has misplaced the original Will, as such,

they be permitted to prove the execution of Will, photocopy whereof is already

on record, by leading secondary evidence.

3. Aforesaid prayer made on behalf of the defendants came to be resisted

by the plaintiffs, who in their reply denied the factum with regard to execution

of Will, if any, by late Surender Kumar. They specifically denied the averment

made on behalf of the defendants, that they had handed over the original of

the Will to their counsel, but he lost the same.

4. Learned Court below, on the basis of pleadings adduced on record by

respective parties, vide impugned order dated 4.8.2022, allowed the

application, subject to payment of cost of Rs. 15,000/-. While accepting the

prayer made on behalf of the defendants, court below observed in the order

that merely granting prayer to lead secondary evidence regarding document

does not mean that it is taken to be proved, rather, the same is required to be

proved in accordance with law and no prejudice shall be caused to the

opposite party, if application is allowed, as the plaintiffs would get chance to

cross-examine the witness, who shall be produced to prove said Will. In the

aforesaid background, plaintiffs have approached this Court in the instant

proceedings, praying therein to set aside order dated 4.8.2022.

5. Having heard learned counsel appearing for the parties and perused

the material available on record vis-à-vis reasoning assigned in the impugned

order, this court finds that in nutshell, grouse of the plaintiffs is that once the

averment with regard to loss of original Will by the counsel of the defendants

was specifically denied by way of reply to the application filed by the plaintiffs,

learned Court below instead of deciding the application, merely on the basis

of averments contained in the application, ought to have framed issues, so

that parties could lead evidence.

6. Mr. Ajay Sharma, learned senior counsel duly assisted by Mr. Atharv

Sharma, Advocate, appearing for the plaintiffs, while making this court peruse

the provisions of Ss.64 and 65 of the Indian Evidence Act, submitted that

though secondary evidence is admissible but till the time, it is proved in

accordance with law that the document intended to be proved by leading

secondary evidence was lost/mis-placed, prayer made in the application for

leading secondary evidence cannot be accepted. In support of his

contentions, Mr. Sharma, learned senior counsel relied upon following

judgments:

           (a)    Kalyan Singh v. Chhoti, AIR 1990 SC 396





           (b)    Suresh Kumar v. Harbans Lal, 2018 (Supp) Shim. LC 582
           (c)    Sh. Amar Nath v. Shri Bhagat Chand, 2019 (2) Shim. LC 972).

7. Mr. Y.P. Sood, learned counsel appearing for the defendants, while

supporting the impugned order granting permission to lead secondary

evidence, contended that there is no illegality in the order impugned in the

instant proceedings, especially when it is not in dispute that the photocopy of

certified copy of Will, which is now sought to be proved by way of secondary

evidence, stood annexed with the written statement. He further submitted that

otherwise also, execution of Will is not in dispute rather, the entire case of the

plaintiffs is that the mutation entered on the basis of Will executed by

Surender Kumar is null and void, as such, plaintiffs cannot be permitted to

claim that the Will sought to be relied upon by the defendants was never

executed. He submitted that since the plaintiffs have termed the Will relied

upon by the defendants to be result of fraud, onus is upon the party relying

upon the Will to prove the same. He stated that since the Will is being sought

to be relied upon by the defendants and they have placed on record

photocopy of the certified copy of Will executed by Surender Kumar, they

have been rightly permitted by learned Court below to prove the aforesaid

document by way of secondary evidence. He stated that once the existence of

the document sought to be proved by way of secondary evidence stands duly

established, learned Court below rightly accepted the prayer of the

defendants. It is submitted by Mr. Sood, that otherwise also, no prejudice, if

any, is going to be caused to the plaintiffs in case defendants are permitted to

prove the Will by way of secondary evidence, because, the plaintiffs would get

opportunity to cross-examine the witness to be examined by the defendants to

prove the execution of Will.

8. Pleadings adduced on record, especially, reply to the application filed

by the plaintiffs under S. 65 of the Indian Evidence Act, reveals that the

plaintiffs specifically denied the averment made in the application filed by the

defendants that the original Will was handed over by them to their counsel for

getting mutation entered but he has misplaced the same. No rejoinder came

to be filed by the defendants to the aforesaid plea set up by the plaintiffs. Bare

perusal of the provisions of Ss. 64 and 65 of the Indian Evidence Act, clearly

reveals that the document sought to be relied upon, if lost or misplaced, can

be proved by way of secondary evidence, however, before accepting the

averment with regard to loss of document sought to be relied upon, it is

required to be established on record that said document was in existence and

the same has been lost/misplaced. Mere assertion made in the application

with regard to loss /misplacement of the document cannot be sufficient rather

in that regard, some cogent and convincing evidence is required to be led on

record. Apart from above, person seeking to lead secondary evidence is also

required to prove that the document sought to be relied upon was in existence

but the same was misplaced/lost. At this stage, it would be apt to take note of

Ss. 64 and 65 of the Indian Evidence Act.

64. Proof of documents by primary evidence.--Documents must be proved by primary evidence except in the cases hereinafter

mentioned.

65. Secondary evidence may be given of the existence, condition, or contents of a document in the following cases--

(a) When the original is shown or appears to be in the possession

or power--

of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or

of any person legally bound to produce it,

and when, after the notice mentioned in section 66, such person does not produce it;

(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;

(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;

(d) when the original is of such a nature as not to be easily movable;

(e) when the original is a public document within the meaning of section 74;

(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence;

(g) when the original consists of numerous accounts or other documents which cannot conveniently be examined in Court and the fact to be proved is the general result of the whole collection. In cases (a), ( c) and (d), any secondary evidence of the

contents of the document is admissible.

In case (b), the written admission is admissible.

In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.

In case (g), evidence may be given as to the general result of

the documents by any person who has examined them, and who is skilled in the examination of such documents.

9. In the instant case, when plaintiffs specifically denied the claim of the

defendants that the document sought to be proved by way of secondary

evidence was lost/misplaced by their counsel, learned Court below ought to

have framed issue(s) so that parties could lead evidence and establish their

claim. Reliance in this regard is placed upon Suresh Kumar supra, wherein, it

has been held as under:

""7. At this moment, this Court finds that the documents whether exists

or not; destroyed or not; or are in the possession of same person or not; or can be produced before the learned Court below or whether the

secondary evidence is to be allowed or not, in view of the non- production of the document is not available, which is pending

adjudication. So, the learned Court below is within its right to frame issues in this regard. This Court finds that there is no illegality in the

impugned order dated 11.1.2018, passed by the learned Court below, which cannot be said to be without any basis."

10. So far averment that the photocopy of certified copy of the Will is

already on record, there is no specific averment in the application that the

photocopy of the Will on record has been prepared from the original. It is also

not pleaded that who prepared the Will and who compared the same.

Provisions contained under S. 65 of the Indian Evidence Act, reproduced

above, clearly provide that the secondary evidence can be led, when the

existence, condition or contents of the original have been proved to be

admitted in writing by the person against whom it is proved or by his

representative in interest; when the original has been destroyed or lost, or

when the party offering evidence of its contents cannot, for any other reason

not arising from his own default or neglect, produce it in reasonable time;

when the original is of such a nature as not to be easily movable. Secondary

evidence of contents of documents is admissible, however, certified copy of

Will is not admissible per se in evidence, but same can be proved by way of

leading secondary evidence.

11. Though, the defendants who have filed photocopy of the certified copy

of Will sought to be relied upon by them alongwith written statement, are

entitled to lead secondary evidence to prove the Will but for that purpose, they

are required to prove by leading cogent and convincing evidence that the Will

sought to be proved by way of secondary evidence was in existence but the

same has been lost or misplaced by their counsel, as has been claimed in the

application. Mere assertion /averment with regard to misplacement /loss of

document may not be sufficient to lead secondary evidence rather, onus to

prove misplacement /loss to have benefit of S.65(c) of the Indian Evidence

Act is on the party seeking to prove the document by way of secondary

evidence. It is required to be proved that the document sought to be relied

upon was misplaced/lost, for any reason not arising from his own

conduct/neglect.

12. Since in the case at hand, plaintiffs specifically denied the averments

contained in the application that the defendants had handed over original

copy of Will to their counsel for getting mutation entered and he lost the same,

court below before considering prayer made on behalf of the defendants for

secondary evidence ought to have framed issues and allowed the parties to

lead evidence and thereafter, the learned Court below ought to have

proceeded to decide the application. Reliance in this regard is placed upon

Amar Nath supra, wherein, it has been held as under:

"3. I have heard learned counsel for the parties and gone through the

record.

4. Relying upon the judgments rendered by the Hon'ble Supreme Court in cases of J. Yashoda Vs. K. Shobha Rani, (2007) 5 Supreme Court

Cases, 730, M. Chandra Vs. M. Thangamuthu, (2010) 9 Supreme

Court Cases 712, H. Siddiqui Vs. A. Ramalingam (2011) 4 Supreme Court Cases 240 & U. Sree Vs. U. Srinivas, (2013) 2 Supreme Court Cases 114, it can be concluded that secondary evidence in respect of an ordinary document can be allowed in case following requirements

inter-alia amongst others are met :-

i) For leading secondary evidence, non production of the document in question has to be properly accounted for by giving

cogent reasons inspiring confidence.

ii) The party should be genuinely unable to produce the original of

the document and it should satisfy the Court that it has done whatever was required at its end. It cannot for any other reason, not arising from its own default or neglect produce it.

iii) Party has proved before the Court that document was not in his

possession and control, further that he has done, what could be done to procure the production of it.

iv) The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original.

5. The record of the case clearly indicates that in the written statement, even the date of the agreement is not mentioned. The written statement was filed on 18.06.2012. The matter was fixed for defendant's witnesses w.e.f. 22.11.2014. The application for leading secondary evidence was moved on 10.07.2017, five years after the

filing of written statement. The reason for delay advanced by the petitioner/defendant that he came to know about the existence of only photocopy of the agreement in the court file, at the time of examination of defendant's witnesses, does not inspire confidence. From 22.11.2014, the matter was fixed for defendant's witnesses. The record

.

of learned Court below demonstrates that statements of DW No.1, DW No.2,DW No.3 had already been recorded on 20.12.2016. There is no reason forthcoming in the application, which sufficiently and cogently

explains the delay in moving the application.

6. The requirements laid down under Sections 63 and 65 of the Indian Evidence Act for permission to lead secondary evidence are not met in the instant case. There is no averment made in the application that the

photocopy of the agreement on the record is made from the original, when it was made and who compared it. The loss of the original agreement has not been accounted for in accordance with the

provisions of Section 65 of the Indian Evidence Act. The application is

bereft of the particulars, which are required for discharging the proof, required under Section 65 of the Indian Evidence Act.

7. Merely, a vague averment made in the application that the document

has not been traced, is not sufficient to allow the application for leading secondary evidence. Therefore, no illegality can be found in the order passed by the learned Trial Court."

13. Hon'ble Apex Court in Kalyan Singh supra, has held that ordinarily

copy of sale deed is not secondary evidence but certified copy of sale deed

may be produced as secondary evidence in the absence of the original.

Hon'ble Apex Court held as under:

"25. The High Court said, and in our opinion very rightly, that Ex. 3 could not be regarded as secondary evidence. Section 63 of the Evidence Act mentions five kinds of sec-ondary evidences. Clause (1), (2) and (3) refer to copies of documents; clause (4) refers to counterparts of documents and clause (5) refers to oral accounts of the contents of documents. Correctness of certified copies referred to in

clause (1) is presumed under Section 79; but that of other copies must be proved by proper evidence. A certified copy of a registered sale deed may be produced as secondary evidence in the absence of the original. But in the present case Ex. 3 is not a certified copy. It is just an ordinary copy. There is also no evidence regarding contents of the

.