Rajasthan High Court - Jodhpur

Smt. Mathura Devi vs Jassa Ram on 2 May, 2023

Bench: Nupur Bhati

[2023/RJJD/012305]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 18109/2018

Smt. Mathura Devi W/o Late Shri Rama Ram, Aged About 79 Years, By Caste Patel, Resident Of Village Sarencha, Tehsil Luni, District Jodhpur.

----Petitioner Versus Jassa Ram S/o Shri Poona Ram, By Caste Patel, Resident Of Luni, Tehsil Luni, District Jodhpur.

                                                                 ----Respondent


For Petitioner(s)         :     Mr. Mukesh Kumar Trivedi
For Respondent(s)         :     Mr. Vishal Thakur
                                Mr. Sukh Dev



               HON'BLE DR. JUSTICE NUPUR BHATI

                                 Judgment

Reserved on 26/04/2023
Pronounced on 02/05/2023

(1) This writ petition under Article 226 & 227 of the Constitution

of India has been filed by the petitioner-plaintiff aggrieved of the

order dated 06.09.2018 passed by learned Senior Civil Judge

No.6, Jodhpur Metro in Civil Original Case No.28/15 (Smt. Mathura

Devi Vs. Jassa Ram), whereby the application filed by the re-

spondent-defendant under Section 65 of Evidence Act, 1872 for

taking the secondary evidence relating to documents, was al-

lowed.

(2) The facts in brief are that the petitioner-plaintiff filed a suit

against the respondent-defendant stating therein that a plot was

allotted in the name of her father-in-law Shri Bhika Ram and a

patta was also issued by the Gram Panchayat Luni in the year

[2023/RJJD/012305] (2 of 7) [CW-18109/2018]

1960. Shri Bhika Ram expired in the year 1974 and the land was

vested in favour of husband of the petitioner-plaintiff, herself and

her son. After the death of her husband, the property is in her

possession. It is stated in the plaint that in the southern side of

her plot, there is a plot of Naina Ram and Poona Ram and the re-

spondent-defendant Jassa Ram is residing and since Jassa Ram

wanted to grab the property of the petitioner-plaintiff, therefore,

the petitioner-plaintiff filed a suit for injunction along with T.I.

Application, which came to be decided in favour of the petitioner-

plaintiff and status quo was ordered to be maintained.

(3) After service of notice upon the respondent-defendant, he

filed written statement and counter claim. The petitioner-plaintiff

also filed rejoinder and written-statement to the counter claim.

The learned Court below, on the basis of the pleadings of the

parties, framed issues and the case was fixed for evidence of peti-

tioner-plaintiff, which was closed in the year 2017 and the matter

was fixed for the evidence of respondent-defendant. The matter

was thereafter fixed for cross-examination of the respondent-de-

fendant and his witness Naina Ram on 11.05.2018. On

11.05.2018, the respondent-defendant filed an application under

Section 65 of the Evidence Act and prayed for taking on record a

copy of the mauka report dated 10.11.1999 by way of secondary

evidence. The petitioner-plaintiff filed reply to the application al-

leging that the original copy of the said document is available with

the Tehsildar, Luni and he has not submitted any proof of not hav-

ing certified copy of the said report, thereby, not complied with

the requirement of Section 65(1) of the Evidence Act.

[2023/RJJD/012305] (3 of 7) [CW-18109/2018]

(4) The learned Court below, after hearing both the parties,

allowed the application of the respondent-defendant (Annex.4)

vide order dated 06.09.2018 (Annex.6).

(5) Thus, being aggrieved of the order dated 06.09.2018 (An-

nex.6), passed by the learned court below, the petitioner-plaintiff

has preferred the present writ petition.

(6) Learned counsel for the petitioner-plaintiff submitted that the

application of the respondent-defendant was not maintainable un-

der Section 65 of the Evidence Act for the reason that the re-

spondent has produced photocopy of the lost document i.e. the

original mauka report, as the original mauka report dated

10.11.1999 was not available with the Office of Tehsildar, Luni and

further the respondent-defendant did not submit any documentary

evidence based on which it can be proved that he had applied for

certified copy of the mauka report. He further submitted that the

Office of Tehsildar, Luni gave a report that the original mauka re-

port dated 10.11.1999 was lost and destroyed, therefore, in the

absence of the application submitted by the respondent-defendant

that he had applied for the certified copy of the mauka report, the

learned trial court ought not to have entertained the application of

the respondent-defendant and, thus, the impugned order dated

06.9.2018 needs to be quashed and set aside on this ground.

Counsel for the petitioner has placed reliance upon the judgment

dated 01.08.2012 passed by Jaipur Bench of this Court in M/s.

Electro Mechanical Engineering Corporation & Anr. Vs. Ad-

ditional District Judge (Fast Track) No.1, Alwar & Anr., re-

[2023/RJJD/012305] (4 of 7) [CW-18109/2018]

ported in 2013 (1) WLC (Raj.) 773; relevant portion whereof reads

as follows :

"The respondent has also not examined any witness nor filed the re- quisite affidavit of the person, who was well conversant with the facts of the case at the time of the institution of the suit, to prove that the said documents were in fact in existence and that they have been lost or destroyed, as alleged. Under the circumstances, in absence of a proper explanation for not leading the best evidence and in absence of any evidence regarding the existence of the ori- ginal documents, and regarding loss of such documents, permission to lead secondary evidence in respect of said documents cannot be granted. As such, because the very existence of the original docu- ments has not been proved by the respondent- plaintiff, the copies of documents in question also could not be said to be the copies made from the originals, as contemplated under Section 63(3) of the said Act and, therefore, the secondary evidence with regard to the said copies of documents also could not be permitted to be given under Section 65 of the said Act."

Counsel for the petitioner has also placed reliance upon the

judgment dated 21.02.2013 passed by this Court in Sultan &

Ors. Vs. State & Anr., reported in 2013 WLC (Raj.) UC 368.

Counsel for the petitioner has further placed reliance upon

the judgment of Hon'ble Apex Court dated 19.04.2007 in Smt. J.

Yashoda Vs. Smt. K. Shobha Rani (Civil Appeal No.2060/2007).

(7) Learned counsel for the respondent-defendant submitted

that the fact whether the document is a valid document has to be

proved by him only at the time of trial before the learned court

below and, therefore, the petitioner-plaintiff cannot question the

suitability and propriety of the document at this stage. Learned

counsel for the respondent has placed reliance upon the judgment

passed by this Court in Smt. Urmila Devi Vs. Smt. Bhanwari

[2023/RJJD/012305] (5 of 7) [CW-18109/2018]

Devi & Anr. (S.B. Civil Writ Petition No.9610/2016, decided on

13.03.2018).

(8) Heard learned counsel for the parties and perused the

material available on the record.

(9) A bare perusal of Section 65 of the Evidence Act, 1872

makes it clear that secondary evidence may be given of the exist-

ence, condition, or contents of a document 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 de-

fault or neglect, produce it in reasonable time.

(10) The respondent has specifically submitted in his application

that the disputed plot was in his possession and in this regard

plaintiff's son Bhera Ram had submitted a complaint before the

Teshildar, Luni, on which, the Gram Panchayat, Sarpanch and Zila

Parishad Members inspected the spot on 10.11.1999 and a report

of the same was given to the defendant. The respondent defend-

ant submitted that he tried to get certified copy of the said report

from the Gram Panchayat, but due to non-availability he could not

get the certified copy. He also stated orally before the learned

court below that due to the record being lost or destroyed over a

long period of time the Gram Panchayat had not made him avail-

able for a long period of time. The respondent-defendant, there-

fore, requested the learned court below to allow him to take the

photocopy of the mauka report dated 10.11.1999 to be presented

as secondary evidence.

(11) This Court finds that in the case of Jagmail Singh & Anr.

Vs. Karamjit Singh & Ors., reported in Civil Appeal No.1889 of

[2023/RJJD/012305] (6 of 7) [CW-18109/2018]

2020, Hon`ble Apex Court vide its judgment dated 13.05.2020

has held that the

"16. In view of the aforesaid factual situation prevailing in the case at hand, it is clear that the factual foundation to establish the right to give secondary evidence was laid down by the Appellants and thus the High Court ought to have given them an opportunity to lead sec- ondary evidence. The High Court committed grave error of law without properly evaluating the evidence and holding that the pre-re- quisite condition i.e., existence of Will remained un-established on record and thereby denied an opportunity to the Appellants to pro- duce secondary evidence.

17. Needless to observe that merely the admission in evidence and making exhibit of a document does not prove it automatically unless the same has been proved in accordance with the law.

18. In view of the aforesaid legal and factual position, we are of the considered opinion that the impugned judgment of the High Court suffers from material irregularity and patent errors of law and not li- able to be sustained and is thus, hereby set aside. The appeal accord- ingly stands allowed.

19. The Appellants would be entitled to lead secondary evidence in respect of the Will in question. It is, however, clarified that such ad- mission of secondary evidence automatically does not attest to its au- thenticity, truthfulness or genuineness which will have to be estab- lished during the course of trial in accordance with law.

20. In the facts and circumstances, we do not make any order as to costs."

(12) Thus, as held in the aforementioned judgment that this is an

established position of law that for secondary evidence to be

admitted foundational evidence has to be given while giving the

reasons as to why the original evidence has not been furnished

and in the instant case respondent defendant has given sufficient

reason for not furnishing the original evidence before the learned

court below. It is also true that the existence of the original

mauka report dated 10.11.1999 can only be proved during the

[2023/RJJD/012305] (7 of 7) [CW-18109/2018]

course of arguments before the learned court below and it is not

the requirement of law that it should be proved at the first in-