PERMOD KOHLI, J. - (1.) PETITIONER has assailed the validity of the order dated 8.8.2006, passed by Additional Civil Judge (Senior Division), Rewari, whereby application of the petitioner for leading secondary evidence in respect to a compromise deed dated 17.9.1999 has been rejected.
(2.) IT is not in dispute that in the suit filed by the petitioner-plaintiff, he has referred to the document in question and also placed on record Xerox copy of the same. During the course of the trial, the petitioner made an application seeking leave of the Court to lead secondary evidence in respect to the alleged compromise deed dated 17.9.1999, on the plea that the original has been lost and not traceable. This application appears to have been resisted by other side as is evident from the reply filed by the defendants. The trial Court rejected the application on the ground that the document does not bear the date and also on the ground that the allegation that the original compromise deed is not traceable is quite vague. The trial Court has observed that the applicant has failed to show how the compromise deed was lost. Another reason recorded for declining the prayer is that the other side has denied the existence of the document. I have heard learned counsel for the parties at length. Section 65 of the Evidence Act permits the leading of secondary evidence under the circumstances enumerated therein, same is noticed hereunder :- "65. Cases in which secondary evidence relating to documents may be given. - Secondary evidence may be given of the existence, condition, or contents of a document in the following cases :- (a) When the original is shown or appears to be in the possession or power - of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it; (b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest; (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; (d) when the original is of such a nature as not to be easily movable; (e) when the original is a public document within the meaning of Section 74; (f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in (India) to be given in evidence; (g) when the originals consists of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection."
(3.) ONE of the circumstance under clause (c) is loss of the original document. The copy of the document is already on record. The petitioner specifically pleaded that the original document has been lost. The circumstances under which it was lost and other related factors are all questions which can only be established once the applicant is allowed to lead secondary evidence in respect to the document in question. Learned counsel appearing for the respondent has referred to Akkam Laxmi v. Thosha Bhoomaiah and another, 2003(1) RCR(Civil) 322 : 2003(1) Civil Court Cases 452 (AP); Hira and another v. Smt. Gurbachan Kaur, 1988(2) PLR 173; Banarsi Dass v. Om Parkash and others, 2005(2) RCR(Civil) 72 : 2005(2) PLR 358; Bhagwan Sarup v. Jagdish Kumar Jain, 2000(2) RCR(Civil) 246 : 2000(1) PLR 858 (P&H). Learned counsel has particularly, relied upon the judgment reported in Banarsi Dass v. Om Parkash and others, 1973 R.C.R.(Rent) 792 : 2005(2) PLR 358, wherein Coordinate Bench of this Court has observed that the applicant must first prove the loss of the document and to establish further as to why the photocopy was obtained if the duplicate of the document was not required to be maintained under any law. He has also referred to the other documents, as noted above, indicating that the secondary evidence can be led under the circumstances enumerated in Section 65 of the Evidence Act. There is no dispute with regard to the proposition as referred to in the above judgments that the secondary evidence is permissible only when essential ingredients under Section 65 of the Evidence Act are proved. The question that needs consideration is whether the loss is to be proved first and then only leave is to be granted for secondary evidence. The counsel appearing for the petitioner has referred to Raj Kumar v. Daljit Kumar Punj and others, 1989 Civil Court Cases 10 (P&H); Indian Overseas Bank v. M/s. Shayama and Co. and others, 1993(2) RRR 44 : 1993 Civil Court Cases 390 (P&H); Smt. Prem Lata v. Smt. Kamla Devi and others, 2006(3) RCR(Civil) 227 : 2006(3) PLR 150; Shangara Singh v. Jawala Singh, 1993(2) RRR 367 : 1993(1) PLR 171; Raj Kumari v. Lal Chand, 1994(1) RRR 117 : 1994(1) Civil Court Cases 477 (P&H); Smt. Sobha Raam v. Ravi Kumar and others, 1999(1) RCR(Civil) 98 : 1998(3) Civil Court Cases 637 (P&H) and Som Parkash v. Prabhati Lal, 1991(2) Recent Revenue Report 399 (P&H), delivered by the Co-ordinate Benches of this Court wherein it is held/observed that loss is not required to be proved in absolute terms.;