________________________________________________ vs The State Of H.P. & Others
2024 Latest Caselaw 5145 HP

Himachal Pradesh High Court

________________________________________________ vs The State Of H.P. & Others on 7 May, 2024

Bench: Tarlok Singh Chauhan, Sushil Kukreja

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

LPA No. 68 of 2019 Reserved on: 30.04.2024

.

Date of decision: 07.05.2024

________________________________________________ Sri Sanatan Dharam Pratinidhi Sabha .....Appellant.

Versus The State of H.P. & others ......Respondents.

________________________________________________ Coram

The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Sushil Kukreja, Judge.

Whether approved for reporting? Yes.

________________________________________________

For the appellant: Mr. Bhupender Gupta and Mr. Anand Sharma, Senior

Advocates, with Ms. Rinki Kashmiri and Mr. Karan Sharma, Advocates.

     For respondents No. 1to4:                  Mr. Ramakant Sharma and Ms.
                                                Sharmila   Patial,  Additional
                                                Advocates General with Mr. Raj
                                                Negi,    Deputy      Advocate




                                                General.





     For respondent No. 5:                      Ms. Archna Dutt, Advocate.

     Sushil Kukreja, Judge.

The appellant herein, which is an Educational

Institution, namely Sanatan Dharam Education Society

Baijnath, District Kangra, H.P., being plaintiff before the

learned Single Judge (hereinafter referred to as "the plaintiff")

Whether reporters of Local Papers may be allowed to see the judgment?

has maintained Civil Suit No. 5 of 2008, under Section 26

read with Order 7, Rules 1 and 2 CPC for recovery of

amount of Rs.2,40,00,000/- alongwith interest and also for

.

mandatory injunction directing the defendants/respondents

(hereinafter referred to as "the defendants") to hand over

original FDR No. RDW 551515, Punjab National Bank,

Baijnath in the sum of Rs.5,00,000/- in favour of GGDSD

College, Baijnath, which was pledged by the society

(plaintiff), lying with defendant No. 5 and declaring that

plaintiff alone is entitled to receive the amount of FDR with

accrued interest to the exclusion of the defendants.

2. The plaintiff preferred the instant appeal under

Clause 10 of the High Court of Delhi Rules, as applicable to

the High Court of Himachal Pradesh, against the order dated

25.07.2019, passed by learned Single Judge, in OMP No.

245 of 2015, in Civil Suit No. 5 of 2008, whereby application

under Section 65 of the Indian Evidence Act, which was filed

by the defendants, for proving the resolution dated

28.09.2002, by way of secondary evidence on behalf of the

State of H.P., was allowed, with a prayer to allow the appeal

with costs and to set-aside the order passed by the learned

Single Judge.

3. The facts giving rise to the instant appeal are that

the defendants, being applicants, maintained an application,

i.e., OMP No. 245 of 2015, under Section 65 of Evidence Act

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read with Section 151 of CPC for proving the resolution

dated 28.09.2002 by way of secondary evidence on behalf of

the defendants/State of H.P., in the aforesaid civil suit, which

was filed by the plaintiff.

4. As per the defendants, at the request of the

plaintiff, GGSD College, Baijnath was taken over by the

government and the Management Committee, vide its

resolution dated 28.09.2002, gave its consent to take over

the college and its infrastructure. Despite best efforts of the

respondents the original record, including the record of the

resolution dated 28.09.2002, could not be traced and

ultimately the defendants in their written statement stated

that record of the college was untraced/misplaced. It was

further pleaded by the defendants that while recording the

evidence of Shri Ajay Lakhanpal, Principal, Pt. Sant Ram

College Baijnath, photo copy of resolution dated 28.09.2002

was produced, which was passed by the Management

Committee of Goswami Ganesh Dutt Sanatan Dharam

Sabha College, Baijnath. The defendants made another

attempt to trace the aforesaid resolution in original when Shri

Ajay Lakhanpal produced the photocopy of the said

resolution and a three members committee was constituted

.

on 22.06.2015 for the said purpose. As per the defendants,

it is unclear whether the original record of resolution dated

28.09.2002 was handed over to the government or not by the

management and it seems that the record remained in

possession of the management till date. The plaintiff was

one of the members in the management, who was opposing

the taking over of the college by the government. Despite

best efforts, only the photocopy of resolution dated

28.05.2015 was traced and when the defendants examined

the witnesses, the aforesaid resolution was marked in the

statement of DW Shri Ajay Lakhanpal. The three member

committee, after verifying the entire record, submitted its

report on 26.06.2015, stating that the file which pertains to

taking over of GGSD College was not traceable in the

records till date. As per the defendants, resolution dated

28.09.2002 is to be proved in accordance with Evidence Act,

by leading secondary evidence only, as the original

resolution is misplaced and is not traceable despite the best

efforts made by the officials of the defendants. The

defendants averred that the suit was filed by the trust and Dr.

Shiv Kumar was the trustee in Sanatan Dharam Pratinidhi

Sabha, Baijnath, who was authorized to file the suit by the

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trust. Dr. Shiv Kumar was also one of the members in the

Management Committee of privately managed GGSD

College, Baijnath, and he also signed the resolution dated

28.09.2002. The defendants further averred that Dr. Shiv

Kumar in his cross-examination admitted that resolution

dated 28.09.2002 was passed by the management to take

over the GGSD College, Baijnath, thus the aforesaid

resolution is necessary to be proved by way of secondary

evidence. The defendants also averred that they want to

examine witnesses Shri Sunil Gupta, Dr. R.C. Verma and Dr.

V.K. Sayal, who had signed the resolution dated 28.09.2002,

in presence of other members, including the plaintiff to prove

the resolution dated 28.09.2002 Mark-X. As per the

defendants, the resolution dated 28.09.2002 is required to be

proved by way of secondary evidence, as the primary

evidence is untraced/misplaced. Lastly, a prayer was made

that the application be allowed and the defendants

(applicants) be permitted to lead secondary evidence to

prove the resolution dated 28.09.2002.

5. The plaintiff (non-applicant), by filing reply to the

application, contested the same and in the reply it has been

averred that the application is not maintainable. As per the

.

plaintiff, all records were taken over by the defendants,

through its Administrator and finally on 04.01.2007, after

taking over all the records, the aforesaid college was

completely taken over by the government. The plaintiff has

no concern with the aforesaid college, after taking over of the

same by the government in 2007, thus the application is

frivolous and is just an attempt to harass the plaintiff. As per

the plaintiff, no record qua the resolution dated 28.9.2002 is

available with the management. It was further averred in the

reply that the application is not maintainable at this belated

stage, as the suit was filed in the year 2008 and since then

several years have passed. The defendants have filed

written statement and various documents, thus the

defendants have no locus standi to file the instant application

at this belated stage. As per the plaintiff, it is within the

knowledge of the defendants that the plaintiff had no control

over the aforesaid college after taking over of the same by

the defendants, through administrator, during the month of

September, 2002, and also thereafter permanently w.e.f.

04.01.2007. The plaintiff also averred that the report, vide

Annexure R-1, which was placed on record, is an

afterthought story, as at no point of time the plaintiff had

.

joined the investigation, thus the same is not relevant. In

fact, no resolution was ever passed by the management.

Lastly, a prayer was made to dismiss the application.

6. On 16.03.2016, the learned Single Judge framed

the following issues for determination and adjudication:

"1. Whether there are sufficient grounds to allow the application filed under Section r 65 of the Indian Evidence Act as alleged? Onus upon applicants.

2. Whether applicants have no cause of action to file the application as alleged? Onus upon non-applicant.

3. Relief."

The applicants/defendants led evidence in support of the

application and examined three witnesses (AWs). Ultimately,

the learned Single Judge allowed the application of the

defendants, hence the instant appeal.

7. We have heard the learned Senior Counsel for

the appellant, learned Additional Advocate General for

respondents No. 1 to 4/State, learned counsel for respondent

No. 5 and carefully examined the entire record.

8. The learned Counsel for the appellant submitted

that the photo copy of the resolution dt.28.09.2002 should

not have been accepted as a secondary evidence

particularly when there was absolute denial about the

.

passing of the resolution. He further submitted that photo

copy without any revelation of the source is not permissible

to be tendered as secondary evidence.

9. On the other hand, learned Additional Advocate

General/learned counsel for the respondents/State supported

the order passed by the learned Single Judge and they have

submitted that in view of the facts and circumstances of the

present case the learned Single Judge had rightly allowed

the application by permitting the applicants/defendants to

lead secondary evidence on the resolution in question.

10. The Hon'ble Supreme Court has held in a catena

of judgements that the party has to lay down the factual

foundation to establish the right to give secondary evidence

where the original document cannot be produced. In this

context, it would be relevant to refer to Sections 63 and 65 of

the Evidence Act, which read as under:

"63. Secondary Evidence -- Secondary Evidence means and includes:

(1) certified copies given under the provisions hereinafter contained; (2) copies made from the original by

mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies;

(3) copies made from or compared with the original;

.

(4) counterparts of documents as against the

parties who did not execute them; (5) oral accounts of the contents of a document given by some person who has

himself seen it.

Illustrations:

(a) A photograph of an original is secondary

evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original.

(b) A copy, compared with a copy of a letter,

made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original.

(c) A copy transcribed from a copy, but afterwards compared with the original is secondary evidence; but the copy not so

compared is not secondary evidence of the original although the copy from which

it was transcribed was compared with the original.

(d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine copy of the original, is secondary evidence of the original.

65. Secondary evidence may be given of the existence, condition of 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 be easily move-able;

(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 originals consist 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 (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."

11. The perusal of the record of the case clearly

.

indicates that in the written statement, it has nowhere been

pleaded that the Management Committee had passed the

resolution dated 28.09.2002 giving consent to take over the

college, including its infrastructure. Further when the plaintiff

appeared in the witness-box, as CW-1, he was never

confronted with the resolution in question dated 28.09.2002.

On a perusal of the stand taken by the plaintiff in the reply to

the application in question, it is quite clear that it had denied

the passing of any resolution dated 28.09.2002 by the

management. The copy of the resolution dated 28.09.2002

which has been filed in tendering the secondary evidence is

neither a certified copy nor a true copy of the original.

12. The secondary evidence would include

categories mentioned in Clauses (1) to (5) to Section 63 and

if the conditions embodied in Section 65(a) to (g) of the

Evidence Act exist, secondary evidence relating to document

can be given. However, in the facts and circumstances of

the present case, the photocopy of the resolution dated

28.09.2002 cannot be admitted in secondary evidence

because on a bare perusal of the application under Section

65 of the Evidence Act, nowhere it has been so stated

therein that the photocopy was made from the original and it

.

was compared with original. The name of the person, who

had obtained the photocopy by mechanical process, has also

not been mentioned in the application and further who

compared the same with original, his name is also neither

mentioned nor any affidavit in that regard has been filed.

13. rIn this context, it would be relevant to refer to the

decision rendered by the Hon'ble Supreme Court in the case

of Kalyan Singh v. Smt. Chhoti & others, (1990) 1

Supreme Court Cases 266, wherein it has been 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 secondary evidences. Clauses (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 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 original sale deed. Ex. 3 cannot, therefore, be

considered as secondary evidence. The Appellate Court has a right and duty to exclude such evidence."

14. In J. Yashoda vs. K. Shobha Rani, (2007) 5

.

Supreme Court Cases 730, the Hon'ble Supreme Court

observed that only when conditions as prescribed in Section

65 are satisfied, documents can be admitted as secondary

evidence. The relevant portion of the aforesaid judgment is

reproduced as under:

"9. The rule which is the most universal, namely, that the best evidence the nature of the case will admit shall be produced, r decides this objection. That rule only

means that, so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it. Section 65 deals with the proof of the

contents of the documents tendered in evidence. In order to enable a party to produce secondary evidence it is necessary for the party to prove existence

and execution of the original document. Under Section 64, documents are to be

provided (sic proved) by primary evidence. Section 65, however permits secondary evidence to be given of the existence,

condition or contents of documents under the circumstances mentioned. The conditions laid down in the said section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non- production of the original being first accounted for in such a manner as to bring it within or other of the cases provided for in the section. In Ashok Dulichand v. Madahavlal Dube (1976 4 SCC 664) it was

inter alia held as follows:

7.... ... ... ...There was also no other material on the record to indicate that the original document was in the possession of Respondent 1. The

.

appellant further failed to explain as to

what were the circumstances under which the Photostat copy was prepared and who was in possession of the

original document at the time its photograph was taken. Respondent 1 in his affidavit denied being in possession of or having anything to do with such a document. The photostat copy appeared to the High Court to be not

above suspicion. In view of all the circumstances, the High Court came to the conclusion that no foundation had been laid by the appellant for leading r secondary evidence in the shape of the photostat copy. We find no infirmity in

the above order of the High Court as might justify interference by this Court.

10. The admitted facts in the present case are that the original was with one P. Srinibas

Rao. Only when conditions of section prescribed in Section 65 are satisfied, documents can be admitted as secondary evidence. In the instant case clause 9(a) of

Section 65 has not been satisfied.

Therefore, the High Court's order does not

suffer from any infirmity to warrant interference."

15. The Supreme Court in United India Insurance

Co. Ltd. V. Anbari and other 2000(10) SCC 523, while

dealing with the photocopy of licence of a driver held that

photocopy was not sufficient to prove that driver had a valid

licence. The relevant portion of the aforesaid judgment is

reproduced as under:-

"3. Learned counsel for the appellant submitted that the point regarding validity of the driver's licence was raised by the appellant before the Motor Accidents Claims Tribunal and the Tribunal in accepting photocopy of a document purporting to be

.

the driver's licence and recording a finding

that the driver had a valid licence, has committed a grave error of law. He also submitted that the High Court has not

dealt with the said contentions of the appellant and without giving any reason has dismissed the appeal. The Tribunal and also the High Court have failed to appreciate that production of a photocopy

was not sufficient to prove that the driver had a valid licence when the fact was challenged by the appellant and genuineness of the photocopy was not admitted by it. ... .... ..."

16. Now reverting to the facts of the case in hand, as

per the applicants/state, during the recording of the evidence

of Shri Ajay Lakhanpal, Principal, Pandit Sant Ram College

Baijnath, he produced a photocopy of the resolution dated

28.09.2002 and an attempt was made by the State to trace

out the record qua the taking over of the erstwhile privately

managed GGSD College Baijnath and a three member

committee was constituted on 22.06.2015 to locate/trace the

original record. It has also been averred in the application

that the photocopy of the resolution was found in the record

of the College on 28.05.2015 when the State of H.P.

examined its witnesses and the same was marked as Mark-

X, in the statement of DW-4 Shri Ajay Lakhanpal. The

perusal of the resolution shows that its copies have also

been endorsed to Secretary/Director (Education) to the

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Government of H.P. and Vice Chancellor, H.P. University,

however, it has been averred in the application that the same

could not be traced in the Record Section of the H.P.

Secretariat. It appears that no attempt has been made to

trace the same from the office of the Vice Chancellor, H.P.

University, as there is no averment in the application that the

State had made any attempt to trace out the same from the

office of the Vice Chancellor, H.P. University. So far as the

applicability of Clause (2) of Section 63 Evidence Act, it can

be said that by some mechanical process, a photocopy of

original resolution was obtained, but, there cannot be any

surety of its correctness and accuracy in absence of any

supporting material on record. In this regard there is no

averment in the application that the photocopy which has

been obtained by mechanical process was never tempered

and it ensures its accuracy. There is also no averment in the

application that the photocopy was compared with the

original and it is an accurate photocopy of the original and

further by not filing any affidavit of person who obtained the

said photocopy is on record, the authenticity and accuracy of

the photocopy of the purported resolution is surrounded by

dark clouds of doubt. We are of the considered view that the

.

photocopy is neither a primary evidence nor secondary

because the party is required to prove when and where the

photocopy was taken and it is the same and exact copy of

the original. When a photocopy without any reasonable

source has been filed, it is not permissible to tender the

same in secondary evidence.

r For a photocopy of a

document to be received in an evidence under the head of

secondary evidence, not only the satisfaction of Section 65 is

required, but simultaneously it is also required that its

photocopy was compared with the original in terms of section

63(3) of the Evidence Act.

17. Since the resolution that has been sought to be

tendered as secondary evidence is neither a certified copy

nor a true copy of the original, in our considered view, it does

not meet with the requirement of Section 65 of the Evidence

Act. In the absence of any proof and requirement of law not

being satisfied, we are of the considered opinion that the

impugned order passed by the learned Single Judge suffers

from patent illegality as such we find merit in the instant

appeal filed by the plaintiff and the same is allowed.

Resultantly, the impugned order dated 25.07.2019, passed

by the learned Single Judge of this Court, in OMP No. 245 of

.

2015, is quashed and set-aside.

18. Needless to say that any observation made

hereinabove has only been made for the purpose of disposal

of the present application and same shall have no affect on

the merits of the case, which shall be adjudicated on its own

merits. r The appeal, so also the pending application(s), if

any, stand disposed of in the aforesaid terms.

( Tarlok Singh Chauhan ) Judge

( Sushil Kukreja )

Judge

7th May, 2024

(virender)