Bihari And Ors vs Gyarsi Devi And Ors
2022 Latest Caselaw 6139 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

                S.B. Civil Writ Petition No. 11435/2018

1.     Bihari
2.     Manohar
       Both Sons Of Shri Arjun Dhobi, residents Of Antella, Tehsil
       Virat Nagar, District Jaipur, Rajasthan
3.     Raj Kumar Son Of Shri Bihari, Residents Of Antella, Tehsil
       Virat Nagar, District Jaipur, Rajasthan
                                                                   ----Petitioners
                                    Versus
1.     Gyarsi Devi Widow of Late Shri Phulla, Resident Of
       Antella, Tehsil Virat Nagar, District Jaipur, Rajasthan
2.     Puran
3.     Rajendra
4.     Vikram,
       All Sons Of Late Shri Phulla, Resident Of Antella, Tehsil
       Virat Nagar, District Jaipur, Rajasthan
5.     Rohitash Son Of Shri Phool Chand Dhobhi
6.     Ramu Son Of Shri Nathu
7.     Balram Son Of Shri Nathu
8.     Prem Devi Wife Of Shri Ramu
9.     Bhagirath Son Of Shri Chhotu Ram,
       All Residents Of Antella, Tehsil Virat Nagar, District Jaipur,
       Rajasthan
10.    Tehsildar, Tehsil Virat Nagar, District Jaipur, Rajasthan.
                                                                 ----Respondents

For Petitioner(s) : Mr. Rajesh Chaturvedi, Adv. for Mr. Manoj Kumar Bhardwaj, Adv.

For Respondent(s) : Mr. Jitendra Chaudhary, Adv. for Mr. Rajesh Kumar Sharma, Adv.

         HON'BLE MR. JUSTICE ASHOK KUMAR GAUR

                                     Order

12/09/2022



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      This   writ       petition     has     been        filed    by   the    petitioners-

defendants, challenging the order dated 26.04.2018, whereby,

application filed by the respondents-plaintiffs, under Section 65 of

the Indian Evidence Act, 1872, has been allowed and secondary

evidence has been allowed in respect of a document, which was

said to be destroyed in fire.

Learned counsel for the petitioners submitted that the Court

below has committed an error in allowing the application filed by

the respondents, as they did not satisfy the requirement of filing

secondary evidence, as per Section 65 of the Indian Evidence Act,

1872.

Learned counsel for the petitioners submitted that though,

secondary evidence can be given but the existence of the

document is required to be proved and even if the assertion of

losing the original document in fire was to be believed, the

respondents ought to have produced the other copy of the

document which was available with the Panchayat record.

Learned counsel for the petitioners further submitted that

the Gram Panchayat concerned, had already treated the

respondents as encroachers over the disputed land and as such,

by permitting the respondents to lead secondary evidence, the

Court below has committed serious error of law.

Learned counsel for the petitioners also placed reliance on

the judgment passed by the Apex Court in the case of J. Yashoda

Vs. K. Shobha Rani, (2007) 5 Supreme Court Cases 730.

Learned counsel for the petitioners on the strength of said

judgment, submitted that the requirement of leading secondary

evidence is to first give the proper explanation and the

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concomitant requirement is to prove existence and execution of

the original document.

Learned counsel for the petitioners submitted that in the

present facts of the case, the Court below has not asked the

respondents to comply with these twin mandatory conditions and

as such, the order is required to be set aside.

Learned counsel appearing for the respondents submitted

that the Court below has passed the order after considering the

scope of leading secondary evidence.

Learned counsel for the respondents submitted that there

are two kind of evidence which can be led in civil suit and in case

the primary evidence in respect of document is not available for

production and inspection of the Court, the said document can

also be proved by way of secondary evidence.

Learned counsel submitted that the respondents had clearly

stated in their application that the document in question-Patta was

lost in fire and the same fact was proved by way of an application

submitted before the Panchayat for grant of copy of the Patta and

on the application submitted by the respondents, the Gram

Panchayat had narrated the fact of non-availability of the

document, due to fire which had broken out in office of the Gram

Panchayat.

Learned counsel for the respondents further submitted that

the conditions which have been enumerated under Section 65 of

the Indian Evidence Act, 1872, had duly been complied with and if

the original document is destroyed or lost and it is not possible for

a party to produce the same even after exercising the due care

and without their own fault or negligence, then such document is

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taken as secondary evidence and contents of document will be

admissible.

Learned counsel for the respondents submitted that the

Court has passed the conditional order asking the respondents to

file an affidavit and only after filing of the said affidavit, the

application of the respondents will be allowed.

I have heard the submissions made by learned counsel for

the parties and perused the material available on record.

This Court finds that the Court below has given a direction to

the respondents to file an affidavit with respect to their averments

made in the application for taking secondary evidence on record.

The condition of filing affidavit will necessarily comply with the

pre-conditions of Section 65 of the Act of 1872 and the

respondents, whatever stated in their application, would say on

oath in the affidavit that the original documents have been

destroyed in the fire.

The submission of the learned counsel for the petitioners

that the secondary evidence of a document can be admissible if

the existence of document itself can be proved, this Court is afraid

to accept the submission made by learned counsel for the

petitioners and bare perusal of sub-Clause (C) of Section 65,

clearly provides that if the original document has been destroyed

or lost or when the party offering evidence of the contents of a

document, for any reason not arising of any default or neglect,

cannot produce the document, then the secondary evidence has

been found to be admissible in respect of contents of document.

The submission of learned counsel for the petitioner that the

Apex Court in the case of J. Yashoda Vs. K. Shobha Rani (supra)

has explained the scope of Section 63, relating to leading

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secondary evidence and requirement of fulfilling twin conditions as

per Section 65 of the Indian Evidence Act, 1872, this Court after

looking into the judgment passed by the Apex Court, finds that

the condition for the secondary evidence to be led by a party

arises after proving the fact that the primary evidence is not in

possession of the said party.

This Court finds that if one of the contingency is about

destroying or losing the document, in such eventuality, the

question of leading secondary evidence arises and if the party

concerned gives an affidavit that such document has been

destroyed or lost, then the Court is clothed with the power for

taking into account the secondary evidence, which is led by the

party concerned.

This Court does not find any error being committed by the

Court below while passing the order impugned and accordingly the

present writ petition stands dismissed. The interim order passed

by this Court stands vacated and the trial Court is directed to

proceed expeditiously in the suit.

(ASHOK KUMAR GAUR),J

Bhavnesh Kumawat/Ramesh Vaishnav

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