- (1.) The order in challenge is that on a consideration of an application filed under Section 65 of the Indian Evidence Act for producing secondary evidence for partition deed, the trial court dismissed the application, rejecting the contention that the primary evidence is lost. The petitioner has brought upon himself an adverse order quite needlessly. Though there is a prevalent practice to file a petition seeking for permission to produce secondary evidence, a time has come to dispense with this practice that has portents to hold up trials. Indeed, there is no need for filing any petition seeking permission for producing secondary evidence. Section 65 details even circumstances when a secondary evidence is admissible. The ground that original has been destroyed is one of the circumstances for producing secondary evidence. It is invariably a matter of evidence that the Court will consider when the document is tendered in Court and exhibited as evidence. A mere assignment of a document as an exhibit does not amount to proof or acceptance of the case that the ground for reception of secondary evidence have been established. All that the court is bound to consider when secondary evidence is tendered shall be i) there shall be evidence justifying its production; ii) the trial Court is entitled to reject the tender of document when no ground is made and the procedure for production is not followed and iii) the secondary evidence conforms to what is spelt out under Section 63 of Evidence Act, the correctness of which will have to be tested in cross-examination. If the document is tendered in evidence, the court shall receive it, subject to objections and allow for cross-examination on the basis set as a ground of production of secondary evidence. The issue of whether the document exhibited had been proved shall be a matter for consideration by the judge at the time of rendering the judgment
(2.) The Supreme Court has observed in Bipin Shantilal Panchal v. State of Gujarat and another, 2001 3 SCC 1 in case arising under the provisions of Cr. P.C. that practice to hold up trial for consideration of admissibility or otherwise of the document ought to be confined only to situations where the admissibility has a fundamental bearing when it is not admissible at all, such as when it is not duly stamped. The Supreme Court said:- It is an archaic practice that during the service collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection. Such practices when realized through the course of long period to be hindrances which impede steady and swift progress of trial proceedings must be recast or remoulded to give way for better substitutes which would help acceleration of trial proceedings. (Para 13) This is in context of how a new procedure shall be followed at the trial. The Court said:- When so recast, the practice which can be better substitute is this: Whenever an objection is raised during evidence-taking stage regarding the admissibility of any material or item or oral evidence the trial Court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed). The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence-taking stage, would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior court, when the same objection is recanvassed and reconsidered in appeal or revision against the final judgment of the trial Court, can determine the correctness of the view taken by the trial Court regarding that objection, without bothering to remit the case to the trial Court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses. We, therefore, make the above as a procedure to be followed by the trial Courts whenever an objection is raised regarding the admissibility of any material or any item of oral evidence. Although this judgment was in a criminal trial, there is no reason why it shall not be adopted for any civil trial as welt. It must be remembered that mere marking of document as exhibit does not dispense with proof of the document either as regards genuineness or validity, if the truth of the document itself is in question. (See: Kailash Devi v. Jai Kishan, 2004 138 PunLR 537; Budh Ram v. Nihal Singh, 2005 140 PunLR 529).
(3.) There shall be an attempt for a Court to adopt procedures which are exigent and which do not throw up needless obstacles. If the document is received in evidence as a secondary evidence now, no prejudice could be caused to the respondents, for, it would be always open to the respondents to still contend that non-production of original was not properly explained. Since the order passed was on an erroneous assumption that separate petition would require to be filed at every time and that the secondary evidence itself should have been produced alongwith the petition. I do not think it is necessary to even serve notice to the respondents. The case would require to be disposed of at the threshold giving an opportunity for the petitioner to produce the document and give proof of what he states as a justifying circumstance. Service of notice and order of stay will only spell further cause for a delay in disposal. This court had occasion to deal with the procedure to be adopted in case where a document is tendered in evidence and how it should be dealt with by the trial Court in Simar Pal Singh v. Hakam Singh, 2009 154 PunLR 562. It is essential for the parties to remind themselves about the said procedure. The revision is disposed of for consideration of the document tendered in evidence in the manner referred to above. Since the order has been passed without serving notice to the respondent, the liberty is given to the party to apply to the Court for review or clarification, if there has been any material suppression of facts by the petitioner.;