Rajasthan High Court - Jodhpur

Virendra Kumar vs Neeraj Garg on 1 March, 2024

Author: Nupur Bhati

Bench: Nupur Bhati

[2024:RJ-JD:10061]

           HIGH COURT OF JUDICATURE FOR RAJASTHAN

                                AT JODHPUR


                S.B. Civil Writ Petition No. 10391/2023

Virendra Kumar S/o Shri Chiman, aged about 24 years, Resident
of House No. 158, Durga Colony, Hanumangarh Junction, District
Hanumangarh (Raj.).
                                                                    ----Petitioner
                                     Versus
Neeraj Garg S/o Shri Chiman, Resident of House No. 81, Sector
12/4, Hanumangarh Junction, District Hanumangarh (Raj.).
                                                                  ----Respondent


For Petitioner(s)          :     Mr. Rajat Rajpurohit
                                 Mr. Prashant Tatia
For Respondent(s)          :     Mr. Dinesh Chandra Mali



               HON'BLE DR. JUSTICE NUPUR BHATI

Judgment

Reserved on- 27/02/2024 Pronounced on-01/03/2024

1. Though the matter was listed in 'Orders' Category, at the

joint request of both the parties, the matter was heard today

finally.

2. This writ petition has been filed under Articles 226 and 227

of the Constitution of India, with the following prayers: -

"It is, therefore, most respectfully prayed that the writ petition filed by the petitioner may kindly be allowed with cost and by an appropriate order, writ or direction, impugned order dated 7.7.2023 (Annexure-5), may kindly be quashed and set aside, consequence thereof, the application under section 65 of the Act may kindly be ordered to reject with all consequential directions.

Any other appropriate writ, order or direction, which is considered just and proper in the facts and

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circumstances of the case, may kindly be passed in favour of the petitioner."

3. Brief facts of the case are that the respondent/plaintiff had

filed for a suit of specific performance of the agreement dated

28.10.2014 for a shop ad-measuring 10x10 feet for Rs. 25,00,000

and the respondent/plaintiff had already paid Rs. 8,00,000 in cash

as earnest money, on the same day and the agreement was

attested and executed. As per the agreement dated 28.10.2014,

the date for execution of transfer deed was fixed on 28.10.2015,

however, by virtue of acknowledgement dated 10.08.2015, the

date of execution of registration of sale deed was agreed upto

31.03.2016. Also, it was alleged that the possession was agreed to

be delivered on the date of execution on or before 31.03.2016.

4. The respondent/plaintiff filed a plaint (Annexure-1) before

the learned Trial Court that since the agreement was not

performed till 31.03.2016, the respondent/plaintiff is entitled to

get the mesne profit arising out of the shop in question. In

response to the said plaint, preferred by the respondent/plaintiff

before the learned Trial Court, the petitioner has denied the very

existence of the alleged agreement, acknowledgement, as well as

the payment of consideration/earnest money along with the mode

of execution and attestation of agreement dated 28.10.2014.

Since the petitioner as well as the respondent/plaintiff were

residing in the same area and were well-known to each other, they

had agreed to start a joint business for various food products, the

petitioner had agreed to deliver the possession of the shop in

question.

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5. Thereafter, the respondent/plaintiff had filed rejoinder and

subsequently the issues were framed by the learned Trial Court on

05.11.2016 and the matter was fixed for plaintiff's evidence. After

a period of three years, the respondent/plaintiff filed affidavit in

chief on 09.01.2020 which was sent for compounding on account

of being insufficiently stamped and thereafter, it came on record

on 03.03.2020. The respondent/plaintiff filed two applications

under Order VII Rule 14 of the Code of Civil Procedure, 1908

(hereinafter referred to as 'CPC') on 07.07.2021, and both the

applications were allowed vide order dated 11.07.2021, after

which the matter was fixed for plaintiff's evidence.

6. On 31.08.2022, the cross-examination of PW-1 could not be

completed for the want of original documents, thereafter, on

27.01.2023, the respondent/plaintiff preferred an application

under Section 65 of the Indian Evidence Act, 1872 (hereinafter

referred to as the 'Act of 1872') for bringing on record the legal

notice, which was sent by the respondent/plaintiff on 13.06.2018

(Annexure-3) through his counsel, Sh. Virendra Mehta for the

performance of the agreement dated 28.10.2014. Alongwith the

said application, the respondent/plaintiff filed a photostat copies of

notice and postal receipt, which were the copies of their respective

originals obtained from Sh. Virendra Mehta, previously appearing

for the plaintiff. In the application, the respondent/plaintiff

alleged that despite efforts being made the notice and postal

receipts could not be procured from the earlier counsel, Sh.

Virendra Mehta.

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7. The learned Trial Court after hearing both the parties,

allowed the application preferred by the respondent/plaintiff under

Section 65 of the Act of 1872 vide order dated 07.07.2023

(Annexure-5).

8. Thus, being aggrieved of the order dated 07.07.2023

(Annexure-5) passed by the learned Trial Court, the

petitioner/defendant has preferred this writ petition.

9. Learned counsel for the petitioner submitted that said

agreement, acknowledgment, along with payment of

consideration/earnest money as well as the mode of execution and

attestation of the agreement dated 28.10.2014 is completely false

and that, an agreement which has not been executed cannot be

enforced by the respondent/plaintiff.

10. Moreover, the learned counsel for the petitioner also denied

the existence of any legal notice which the respondent/plaintiff

alleged to have sent through the counsel, Adv. Sh. Virendra

Mehta. Learned counsel for the petitioner also submitted that the

respondent/plaintiff had failed to establish prima-facie, the

existence of the documents in question and its custody and

therefore, the respondent/plaintiff cannot be permitted to bring on

record the photocopies of the said documents under Section 65 of

the Act of 1872. He further submitted that neither the affidavit

from the counsel, Adv. Sh. Virendra Mehta nor the notice under

Section 66 of the Act of 1872 and under Order XVI Rule 6 CPC was

served upon the counsel, Adv. Sh. Virendra Mehta. Therefore, he

submitted that the respondent/plaintiff had not satisfied the

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essentials for seeking permission to allow the secondary evidence.

Order XVI Rule 6 reads as under:-

"6. Summons to produce document.--Any person may be summoned to produce a document, without being summoned to give evidence; and any person summoned merely to produce a document shall be deemed to have complied with the summons if he causes such document to be produced instead of attending personally to produce the same."

11. Learned counsel for the petitioner also relied upon the

decision of the Hon'ble Madhya Pradesh High Court in the case of

Ram Singh Sahu v. Ram Dayal Gangaram Maheshwari [Civil

Revision No. 2254 of 1999, decided on 06.01.2000]. The relevant

para is reproduced as under:-

"10. clause (3) of section 66, as observed above, provides that it may be proved to the satisfaction of the Court that the adverse party had obtained possession of the original by fraud or force. Undisputedly the plaintiff did not lead any evidence to prove to the satisfaction of the Court that the adverse party had obtained possession of the original by fraud or force. Probably this also could not be done by him in absence of the material pleadings in the plaint. If pre-conditions for application of the proviso are not available, the plaintiff cannot be exempted from giving a notice to the defendant to produce the document."

12. Learned counsel for the petitioner also submitted that the

respondent/plaintiff was under an obligation under Order VII Rule

14 of CPC to supply the list of documents which he intends to

submit after the suit has been filed, however, in the present case,

the respondent/plaintiff has done away with his duty, which was

overlooked by the learned Trial Court. Order VII Rule 14 reads as

under:-

"[14. Production of document on which plaintiff sues or relies.--

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(1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.

(2) Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is.

[(3) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.] (4) Nothing in this rule shall apply to document produced for the cross-examination of the plaintiffs witnesses, or handed over to a witness merely to refresh his memory.]"

13. Per contra, learned counsel for the respondent/plaintiff

submitted that the respondent/plaintiff had sent a legal notice to

the petitioner through the counsel who was previously engaged by

the respondent, Adv. Sh. Virendra Mehta, and after numerous

attempts to procure the legal notice, the respondent/plaintiff was

not able to produce the original document before the learned Trial

Court, therefore, the respondent/plaintiff preferred an application

under Section 65 of the Act of 1872, to bring on record the

photocopy of the said notice.

14. Learned counsel for the respondent/plaintiff further

submitted that the respondent/plaintiff had filed an application

seeking to adduce secondary evidence in accordance with Section

66 of the Act of 1872, which stipulates that in the event of loss of

the original document, the notice to produce need not be given by

the respondent.

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15. Learned counsel for the respondent/plaintiff further places

reliance upon the judgment passed by the Hon'ble Apex Court in

the case of Jagmail Singh and Anr. v. Karamjit Singh and

Ors. reported in 2020 AIR SC 2319, wherein it was categorically

observed by the Hon'ble Apex Court that since the factual

foundation to establish the right to give secondary evidence was

laid down by the appellants, the High Court ought to have given

them an opportunity to lead the secondary evidence. The relevant

para of the judgment is reproduced as under:-

"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 secondary evidence. The High Court committed grave error of law without properly evaluating the evidence and holding that the pre- requisite condition i.e., existence of Will remained unestablished on record and thereby denied an opportunity to the appellants to produce secondary evidence."

16. Heard learned counsel for the parties, perused material

available on record and judgments cited at the Bar.

17. This court observes that the learned Trial Court has

categorically taken note of the fact that the Notice dated

13.06.2014 had been delivered to the petitioner through the

counsel, Adv. Sh. Virendra Mehta, on 15.06.2018 as per the track

record of the Postal Department and the postal receipt of the said

notice was pasted by Adv. Sh. Virendra Mehta on the copy of the

Notice, and subsequently the respondent/plaintiff had obtained a

photocopy of the same.

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18. This court is of the view that pre-requisites of Section 65 of

the Act of 1872 have to be satisfied before leading secondary

evidence. For the purpose of the same, this Court finds that the

Hon'ble Apex Court in the case of Rakesh Mohindra v. Anita

Beri and Ors. reported in (2016) 16 SCC 483 has held that in

order to lead secondary evidence, certain pre-conditions are

required to be fulfilled, where such original document(s) could not

have been produced by the party relying upon such documents in

spite of best efforts, and it was unable to produce the same which

is beyond his control. It has also been held by the Hon'ble Apex

Court that the party seeking to produce secondary evidence must

establish for the non-production of primary evidence, unless, it is

established that the original documents are lost or destroyed or

are being deliberately withheld by the party in respect of that

document sought to be used, secondary evidence in respect of

that document cannot be accepted. The relevant para is

reproduced as under:-

"Held, while allowing the appeal (1) 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 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."

19. Section 65 (c) of the Act of 1872 reads as under:

"65. Cases in which secondary evidence relating to documents may be given:

[2024:RJ-JD:10061] (9 of 12) [CW-10391/2023]

xxx

(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;"

20. This court also finds that in the case of Rakesh Mohindra

v. Anita Beri and Ors. (supra.), Hon'ble Apex Court has also

ascertained that if the party wishes to lead secondary evidence,

the Court is obliged to examine the probative value of the

document in secondary evidence. It was also held by the Hon'ble

Apex Court 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 . The relevant para is

reproduced as under:-

"19. The High Court, following the ratio decided by this Court in the case of J. Yashoda v. Smt. K. Shobha RaniAIR 2007 SC 1721 and H. Siddiqui (dead) by L.Rs. v. A. Ramalingam AIR 2011 SC 1492, came to the conclusion that the Defendant failed to prove the existence and execution of the original documents and also failed to prove that he has ever handed over the original of the disclaimer letter dated 24.8.1982 to the authorities. Hence, the High Court is of the view that no case is made out for adducing the secondary evidence.

20. The witness DW-2, who is working as UDC in the office of DEO, Ambala produced the original GLR register. He has produced four sheets of paper including a photo copy of letter of disclaimer. He has stated that the original documents remained in the custody of DEO. In crossexamination, his deposition is reproduced hereinbelow:

xxxxxxxx by Sh. M.S. Chandel, Advocate for the Plaintiff No. 2.

I have not brought the complete file along with the record. I have only brought those documents which were summoned after taking up the documents from the file. As on today, as per the GLR, Ex. DW- 2/A, the name of Rakesh Mohindra is not there. His name was deleted vide order dated 29.8.2011. I have not brought the original of Ex. DW-2/B. It is correct that

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Ex. DW-2/D does not bear the signatures of Sh. P.C. Dhanda. Volunteered.: These are not legible. Ex. DW-2/C is signed but the signatures are not legible. On the said document the signatures of the attesting officer are not legible because the document became wet. I cannot say whose signatures are there on these documents. On Ex. DW-2/E the signatures at the place deponent also appears to have become illegible because of water. Ex. DW-2/F also bears the faded signatures and only Tek Chand is legible on the last page. It is incorrect to suggest that the last page does not have the signatures of the attesting authority. Volunteered: These are faded, but not legible. The stamp on the last paper is also not legible. There is no stamp on the first and second page. In our account, there is no family settlement, but only acknowledgement of family settlement. I do not know how many brothers Rakesh Mohindra has. It is correct that the original of Ex. DW-2/H does not bear the signatures of Sh. Abhay Kumar. I do not know whether Sh. Abhay Kumar Sud and Rakesh Mohindra are real brothers. The above mentioned documents were neither executed nor prepared in my presence. It is incorrect to suggest that the above mentioned documents are forged. It is incorrect to suggest that because of this reason I have not brought the complete file.

21. In the case of Rai Baijnath (dead) by Kedarnath Goenka v. Maharaja Sir Pavaneshwar Prasad Singh AIR 1922 Privy Council page 54, a similar question came for consideration as to the admissibility of secondary evidence in case of loss of primary evidence. Lord Phillimore in the judgment observed:

It is, no doubt, not very likely that such a deed would be lost, but in ordinary cases, if the witness in whose custody the deed should be, deposed to its loss, unless there is some motive suggested for his being untruthful, his evidence would be accepted as sufficient to let in secondary evidence of the deed.

22. It is well settled that if a party wishes to lead secondary evidence, the Court is obliged to examine the probative value of the document produced in the Court or their contents and decide the question of admissibility of a document in secondary evidence. At the same time, the party has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. It is equally well settled that neither mere admission of a document in evidence amounts to its proof nor mere making of an exhibit

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of a document dispense with its proof, which is otherwise required to be done in accordance with law."

21. This court takes into consideration the fact that in the

present case, the respondent/plaintiff has sufficiently proved that

the document in question is not in his possession and despite best

efforts, the same could not be procured from the earlier counsel,

Sh. Virendra Mehta and therefore, it is established that the

original documents are out of his reach, and the secondary

evidence has to be accepted. It is also important to take into

consideration Section 66 of the Act of 1872, which is reproduced

as under:-

"66. Rules as to notice to produce.-- Secondary evidence of the contents of the documents referred to in section 65, clause (a), shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to his attorney or pleader,] such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case:

Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it: -- (1) when the document to be proved is itself a notice;