Punjab-Haryana High Court
Sukhwinder Kaur And Ors vs Devinder Sandhu And Ors on 27 July, 2022
CR-6655-2014 (O&M)
217
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CR-6655-2014 (O&M)
Reserved on : 13.07.2022
Date of decision : 27.07.2022
Sukhwinder Kaur and Others .....Petitioners
Versus
Devinder Sandhu and Others ....Respondents
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present: Mr. Anil Chawla, Advocate for the petitioners.
Mr. Rakesh Bhatia, Advocate for respondent No.1.
Service of respondent No.2 dispensed with.
None for respondent No.3.
ALKA SARIN, J.
The present revision petition under Article 227 of the
Constitution of India has been filed by the plaintiff-petitioners impugning
the order dated 03.09.2014 whereby their application for leading secondary
evidence was partly allowed.
Learned counsel for the plaintiff-petitioners would contend that
the photocopy of the receipt dated 04.10.2007 which the plaintiff-petitioners
had sought permission to produce as secondary evidence was declined on the
ground that copies of the original cannot be received as secondary evidence.
Learned counsel would further contend that the said receipt was admittedly
executed by the defendant-respondents. However, it is stated by them that
YOGESH SHARMA
2022.07.27 17:50
I attest to the accuracy and
authenticity of this order/judgment.
Chandigarh
CR-6655-2014 (O&M)
the said document was not in their possession and, hence, the same was
required to be proved by way of secondary evidence. In support of his
contentions, learned counsel for the plaintiff-petitioners has relied upon the
judgments of this Court in the cases of Kashmir Kaur Vs. Sukhwant Kaur
& Ors. [2006(2) RCR (Civil) 683] and Ashok Kumar Sachdeva Vs.
Harish Malik [2007(4) RCR (Civil) 311].
Per contra, learned counsel for the defendant-respondent No.1
has contended that a photocopy cannot be permitted to be led as secondary
evidence. It is further the contention that once the receipt had been admitted
in the written statement, there was no requirement to produce the same as
secondary evidence. In support of his contentions, learned counsel for the
defendant-respondent No.1 has relied upon the judgments of Hon'ble
Supreme Court in the cases of Smt. J. Yashoda Vs. Smt. K. Shobha Rani
[2007 (2) RCR (Civil) 840] and Hariom Agrawal Vs. Prakash Chand
Malviya [2007 (4) RCR (Civil) 548].
Heard.
In the present case, vide the impugned order the application of
the plaintiff-petitioners for leading secondary evidence has partly been
allowed qua the power of attorney dated 02.04.2009. However, qua
production of a photocopy of the receipt dated 04.10.2007 as secondary
evidence, the application has been declined.
The Supreme Court in the case of Rakesh Mohindra Vs. Anita
Beri & Ors. [2015 (4) RCR (Civil) 1023] held as under :
"17. The pre-conditions for leading secondary evidence
are that such original documents could not be produced
by the party relied upon such documents in spite of best
YOGESH SHARMA
2022.07.27 17:50
I attest to the accuracy and
authenticity of this order/judgment.
Chandigarh
CR-6655-2014 (O&M)
efforts, unable to produce the same which is beyond
their control. The party sought to produce secondary
evidence must establish for the non-production of
primary evidence. Unless, it is established that the
original documents is lost or destroyed or is being
deliberately withheld by the party in respect of that
document sought to be used, secondary evidence in
respect of that document cannot accepted."
In the case of Surinder Kaur Vs. Mehal Singh & Ors. [2014
(1) RCR (Civil) 467] while dealing with the question as to whether
photocopy can be tendered as secondary evidence, this Court, after referring
to the case law, held as under :
"20. The proposition of law laid down in aforesaid
judgments provides answers to the questions raised
above. Thus a Photostat copy of a document can be
produced in evidence only when it is alleged and proved
that the original was in existence and is lost or
destroyed or is in possession of opposite party who
failed to produce it or in any other circumstances
mentioned in section 65 of the Act. These foundational
facts, however, are to be proved by leading cogent
evidence. As regards the question whether photostat
copy of a document comes within the meaning &
definition of 'secondary evidence' as contained
in section 63 of the Act, there cannot be absolute answer
because every photostat copy may not be accurate. For
YOGESH SHARMA
2022.07.27 17:50
I attest to the accuracy and
authenticity of this order/judgment.
Chandigarh
CR-6655-2014 (O&M)
this purpose the probative value of the Photostat copy
has to be proved independently.
21. The principles culled out from the aforesaid
discussion are summarized below:
a) Photostat copy of a document can be allowed to be
produced only in absence of original document.
b) When a party seeks to produce Photostat copy it
has to lay the foundational facts by proving that original
document existed and is lost or is in possession of
opposite party who failed to produce it. Mere assertion
of the party is not sufficient to prove these foundational
facts.
c) The objections as to non existence of such
circumstances or non existence of foundational facts
must be taken at earliest by the opposite party after the
photostat copy is tendered in evidence.
d) When the opposite party raises objection as to
authenticity of the Photostat copy its authenticity has to
be determined as every copy made from a mechanical
process may not be accurate. Both the requirements of
clause (2) of section 63 are to be satisfied.
e) Allowing production of Photostat copy in evidence
does not amount to its proof. Its probative value has to
be proved and assessed independently. It has to be
shown that it was made from original at particular place
and time.
YOGESH SHARMA
2022.07.27 17:50
I attest to the accuracy and
authenticity of this order/judgment.
Chandigarh
CR-6655-2014 (O&M)
f) In cases where the Photostat copy is itself
suspicious it should not be relied upon. Unless the court
is satisfied that the Photostat copy is genuine and
accurate it should not be read in evidence.
g) The accuracy of photostat copy shall be established
on oath to the satisfaction of court by the person who
prepared such copy or who can speak of its accuracy.
22. The abovesaid principles must be followed by the
courts while admitting a photostat copy as secondary
evidence and assessing its probative value."
The judgments relied upon by learned counsel for the
defendant-respondent No.1 would not be applicable to the facts of the
present case inasmuch as in Hariom Agrawal's case (supra), the documents
were insufficiently stamped and it was held that photocopy cannot be
admitted as secondary evidence on payment of fee and penalty. In J.
Yashoda's case (supra), their Lordships of the Supreme Court held that as a
general rule secondary evidence was admissible only in the absence of
primary evidence. If the original itself was found to be inadmissible in
evidence due to the failure on the part of the party who files it, the same
party would not be allowed to introduce the secondary evidence.
In the present case the document (receipt) was admittedly
executed by the defendant-respondents and is now stated not to be in their
possession. That being so, the same can be permitted to be led as secondary
evidence. Needless to say that the probative value of the photocopy would
be needed to be proved independently.
In view of the above, the present revision petition is allowed.
YOGESH SHARMA
2022.07.27 17:50
I attest to the accuracy and
authenticity of this order/judgment.
Chandigarh
CR-6655-2014 (O&M)
The plaintiff-petitioners shall be permitted to lead secondary evidence in
respect of the receipt dated 04.10.2007 which would be then proved in
accordance with law.
The revision petition stands allowed in the above terms.
Pending applications, if any, also stand disposed off.
( ALKA SARIN )
27.07.2022 JUDGE
Yogesh Sharma
NOTE : Whether speaking/non-speaking : Speaking
Whether reportable : YES/NO
YOGESH SHARMA
2022.07.27 17:50
I attest to the accuracy and
authenticity of this order/judgment.
Chandigarh
