2015 (11) TMI 1840 - SC - Indian Laws

Validity of secondary evidence of the contents - whether the High Court is justified in reversing the order passed by the Trial Court allowing the Defendant- Appellant to lead secondary evidence of the contents of the documents? - Sections 34 and 38 of the Specific Relief Act, 1963 - HELD THAT - 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. The High Court, following the ratio decided by this Court in the case of J YASHODA VERSUS K. SHOBHA RANI 2007 (4) TMI 11 - SUPREME COURT , 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. 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 of a document dispense with its proof, which is otherwise required to be done in accordance with law. All efforts have been taken for the purpose of leading secondary evidence. The trial court has noticed that the photocopy of the Exhibit DW-2/B came from the custody of DEO Ambala and the witness, who brought the record, has been examined as witness. In that view of the matter, there is compliance of the provisions of Section 65 of the Evidence Act. Merely because the signatures in some of the documents were not legible and visible that cannot be a ground to reject the secondary evidence. The trial court correctly appreciated the efforts taken by the Appellant for the purpose of leading secondary evidence - the impugned order passed by the High Court cannot be sustained in law. Appeal allowed - decided in favor of appellant.

Summary

Issues Involved:

1. Whether the High Court was justified in reversing the order of the Trial Court allowing the Defendant-Appellant to lead secondary evidence of the contents of the documents.

Issue-wise Detailed Analysis:

1. High Court's Reversal of Trial Court's Order on Secondary Evidence:

The primary issue in this case was whether the High Court was justified in reversing the Trial Court's order that allowed the Defendant-Appellant to lead secondary evidence of the contents of certain documents. The Trial Court had permitted the Defendant-Appellant to lead secondary evidence under Section 65 of the Evidence Act, which deals with circumstances under which secondary evidence relating to documents may be given.

The Respondents-Plaintiffs filed a suit under Sections 34 and 38 of the Specific Relief Act, 1963, seeking a declaration that the Defendant-Appellant had no right, title, or interest over the suit property and to restrain the Defendant from causing any loss or injury to the property. The Plaintiffs claimed possession of the property based on a registered will executed by Justice late Sh. Tek Chand in favor of Plaintiff No. 2, Smt. Anita Beri.

The Defendant-Appellant, on the other hand, claimed to have inherited the property from Smt. Vijaya Kumari based on a gift deed dated 19.03.1965 and a letter of disclaimer dated 24.08.1982 executed by Justice Tek Chand. The Defendant-Appellant sought to prove the letter of disclaimer by way of secondary evidence, asserting that the original document was lost or misplaced from the Office of the Defence Estate Officer (DEO), Ambala.

The Trial Court allowed the application for secondary evidence, noting that the photocopy of the letter of disclaimer came from the custody of DEO Ambala and that the original document was misplaced. The Trial Court was satisfied that the conditions under Section 65(c) of the Evidence Act were met, which allows secondary evidence when the original document is lost or destroyed.

However, the High Court, in a civil revision preferred by the Plaintiff-Respondent No. 1, set aside the Trial Court's order. The High Court observed that there was no mention of the letter of disclaimer in the Defendant's Written Statement and that the Defendant failed to prove the existence and execution of the original document. The High Court relied on precedents such as J. Yashoda v. Smt. K. Shobha Rani and H. Siddiqui (dead) by L.Rs. v. A. Ramalingam, concluding that the Defendant did not establish a case for adducing secondary evidence.

The Supreme Court, however, found that the Defendant-Appellant had taken all necessary steps to produce the original document and that the Trial Court correctly appreciated the efforts taken for leading secondary evidence. The Supreme Court emphasized that the preconditions for leading secondary evidence include proving that the original document could not be produced despite best efforts and that it was beyond the control of the party to produce it.

The Supreme Court further noted that the witness from DEO Ambala had produced the original General Land Register (GLR) and other related documents, although some signatures were not legible due to water damage. The Court held that mere admission of secondary evidence does not amount to its proof and that the genuineness and correctness of the document must be established during the trial.

Conclusion:

The Supreme Court allowed the appeal, setting aside the High Court's order and reinstating the Trial Court's decision to permit secondary evidence. The Court clarified that the admission of secondary evidence does not equate to its proof, and the trial court must establish the genuineness and correctness of the document during the trial. The appeal was accordingly allowed, and the case was remanded for further proceedings consistent with the Supreme Court's judgment.