PUSHPENDRA SINGH BHATI,J. - (1.) The brief facts as noticed by this Court are that at Bidasar, the petitioner and the respondent no. 1 had a residential house of joint ownership. The possession of premises was with one Shri Suraj Mal and Mangi Lal Sharma, who did not have any title-deed. The possession was sold to the petitioner and respondent no. 1 jointly. The husband of petitioner and husband of respondent no. 1 were real brothers, therefore, the petitioner gave half price of the land to Shri Srichand for purchasing the land jointly and on this land the house in-question was constructed. However, the sale-deed was issued only in the name of Smt. Bhanwari Devi only. When petitioner raised dispute, Smt. Bhanwari Devi executed a Pratigya Patra (Declaration) and accordingly construction permission was issued by the Municipal Board on 21.6.1984. An application for issuing 'patta' jointly in the name of petitioner and respondent no. 1 was submitted and accordingly a joint 'patta' was issued on 26.08.1991. The allegation of the petitioner is that the 'patta' was forged subsequently and her name was cut from the 'patta' with the aid of staff of Municipal Board and also the Pratigya Patra (Declaration) dated 26.04.1983 from the concerned file, thus, petitioner had to take resort of filing civil suit for declaration and injunction regarding the property in-question. When the petitioner applied for certified copy of Pratigya Patra (Declaration) dated 28.04.1983, the Municipal Board could not give her the same stating that the same are not traceable from its records. The petitioner moved an application under Section 65 of Evidence Act before the learned court below to allow her to take photostat copy of Pratigya Patra (Declaration) dated 28.04.1983 and to permit her to file the documents as secondary evidence, which was dismissed by order dated 12.5.2016 (Annex.10).
(2.) Learned counsel for the petitioner argued that Section 65 of the Evidence Act provides that photostat copy of lost document can be brought on record. The court below erred while dismissing the application vide order dated 12.5.2016 (Annex.10) and doubting on the very existence of original document executed inter-se between the parties. To substantiate his argument counsel for the petitioner has relied upon the judgment rendered in the case of Keshu Ram and Anr. v. Sonaki Bai reported in, AIR 2018 (Raj.) 10, which is reproduced as under:- "1. By way of the instant writ petition filed under Article 227 of the Constitution of India, the petitioners have challenged the order dated 26.08.2016 passed by the learned Senior Civil Judge, Srikaranpur, District Sriganganagar, whereby application dated 16.05.2015 filed by the petitioners-plaintiffs under Section 65 of the Evidence Act, seeking permission to lead secondary evidence in respect of an agreement to sell dated 26.12.1991, has been rejected. The facts giving rise to the present writ petition are that the plaintiffs filed a suit for specific performance of an agreement, said to have been executed by the defendant in petitioners' favour on 26.12.1991, in relation to 6 Bighas 5 Biswa land. While instituting the suit, the plaintiff stated in para No. 10 of the plaint that the original agreement dated 26.12.1991 had been lost ten days prior to the institution of the suit, which is being reproduced for the sake of ready reference:- 2. The defendant filed a written statement, while denying the very existence of the said agreement to sell dated 26.12.1991 and asserting that the same is forged and spurious. During the pendency of the suit proceedings before the plaintiff's evidence could commence, the petitioners-plaintiffs submitted an application dated 16.05.2015, seeking leave to lead secondary evidence with respect to the agreement dated 26.12.1991 as provided under Section 65 of the Evidence Act, 1872. The petitioners' stance in the application was in conformity with the plaint and they reiterated that the original agreement to sell dated 26.12.1991 had been lost/stolen and there is no possibility of it being discovered. In response to the said application, filed by the plaintiffs, the defendant filed a reply and denied the averments and prayer made in the application. 3. The said application dated 26.05.2015 filed by the plaintiffs came to be rejected by the learned Trial Court vide its order dated 26.08.2016, apparently being influenced by the fact that the plaintiffs had lodged any FIR about the theft of the agreement to sell. Learned Trial Court has further observed in the order impugned that the plaintiffs have filed any affidavit in support of the application indicating that the document had been stolen. 4. Assailing the order impugned, Mr. G.J. Gupta, learned counsel for the petitioners submitted that learned Trial Court has seriously erred in rejecting petitioners' application, seeking leave to produce secondary evidence of the contentious agreement to sell. He argued that the petitioners' assertion cannot be brushed aside simply because no FIR was lodged by the petitioners in relation to theft of the document and because no affidavit in support thereof has been filed. Attacking the finding recorded by the learned Trial Court, Mr. Gupta contended that there is no requirement in law, to lodge FIR, if a document has been stolen. With respect to the requirement of filing affidavit in support of the application, the argument of learned counsel has been that neither provisions of Section 65 of the Evidence Act nor any other law requires filing of such an affidavit. However,, he maintained that the plaintiff had in unequivocal terms asserted in his plaint itself that the original document in question had been stolen ten days prior to the filing of the suit and that the plaint itself was supported by the petitioners' affidavit. He urged that even if there is a requirement of filing the affidavit, the affidavit filed along with the plaint should be treated as an affidavit indicating that the contentious original agreement to sell had been stolen. In support of his argument, Mr. Gupta relied upon judgment of this Court in the case Omkar Lal v. LOT, Udaipur, reported in 2009 (1) (DNJ) 398. Para 6 and 7 of the said judgment are being reproduced herein-under for the sake of ready reference and for the purpose of throwing light on the law on the subject. "6. So far as admitting the document in question is concerned, the document in question produced by the plaintiff is the, photostat copy of the Patta. That has been obtained by mechanical process. The issues have been decided by the trial Court about the fact whether there was any original document so as to prove existence of copy of the document. Without holding any enquiry, the trial Court rejected the application of the plaintiff. In that situation, it will be trial within trial if no preliminary enquiry is held for finding out, whether there was original document or not, whether it is lost or not, whether it is lost in the manner in, which it is stated and whether the copy produced is the true and correct copy of the original and these issues can be examined by the Court during trial as the document can be admitted in evidence subject to just objections which includes all above questions. The admission of a document in this situation, cannot deprive the other party to raise objection about the very foundation for coming into existence of original document. Therefore, it will be appropriate that the document be admitted in evidence subject to all rights of the defendant including the right to allege that the original document was never issued or came in existence so as to give birth to its photostat copy. The defendant's right for taking objection about the document for creating title in favour of the plaintiff, will also be available. In short, all the defences which can be taken in preliminary enquiry, will be available to the defendant during trial of the suit. 7. In view of the above reasons, the writ petition is allowed. The order of the trial Court dated 16.08.2004 is set aside. The document in question, i.e. Photostat copy of the Patta dated 12.07.1953 is admitted in evidence for limited purpose with right to the defendant to raise his all objections about the genuineness, correctness and validity of the document including the objections that there was no original document and it is the correct copy, therefore, it is creating any title in favour of the plaintiff, all those objections will be decided by the trial Court while deciding the main suit after evidence of the parties." 5. Another judgment in case of Ramchandra v. LR's of Nandlal and Purshottam, reported in, 2015 (4) DNJ 1847 has been cited by Mr. Gupta, para No. 6 and 7 whereof relied upon by him, are being reproduced herein-under. "6. Though, these submissions made by the learned counsel for the appellant Mr. Manish Shishodia are opposed by the learned counsel Mr. L.R. Mehta and Mr. Ramit Mehta appearing for the respondents-defendants with the submissions that the learned Trial Court had already dismissed the application earlier filed by the plaintiff-Ram Chandra in this regard refusing to take the copy of the patta as secondary evidence, but this Court is of the considered opinion that the aforesaid piece of evidence, i.e., the copy of the patta, is relevant evidence in the present controversy and therefore, the same deserves to be considered by the learned Trial Court depending upon the proof led by the parties before it, since the defendant-Nand Lal has claimed that he is the exclusive owner of the land in question and the another defendant-Purshottam, his brother had no right to sell the same in favour of the plaintiff-Ram Chandra, therefore, burden to prove his title is essentially on the defendant-Nand Lal before the learned Trial Court. 7. Be that as it may, for the present purposes, this Court is satisfied that the said evidence, i.e. the photocopy of the patta, deserves to be taken on record as secondary evidence and taken into account by the learned Trial Court. Therefore, the application filed by the plaintiff-appellant under Order 41, Rule 27 of the Civil Procedure Code deserves to be allowed; and as a consequence thereof, the impugned judgments and decrees of both the Courts below dated 27.03.1986 and 22.05.1985 deserves to be set aside and the effect of the above order will be that the trial of the suit will be restored to the learned Trial Court for trial afresh in accordance with law." 6. On the other hand, Mr. Sushil Bishnoi, learned counsel appearing for the respondents commenced his arguments, with a reading of the provisions of Section 65 and section 63 of the Indian Evidence Act, which reads as under:- "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, subject to, the process of the Court, or or any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does 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 riot arising from his own default or neglect, produce it in reasonable time; (d) When the original is of such a nature as 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 original 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. In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents. 63. Secondary evidence..-Secondary evidence means and includes- (1) certified copies given under the provisions hereinafter contained; (2) copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies; (3) copies made from or compared with the original; (4) counterparts of documents as against the parties who did execute them; (5) oral accounts of the contents of a document given by some person who has himself seen it." 7. Mr. Bishnoi contended that in whichever clause of Section 65 of the Evidence Act, a person's case falls, he will have to prove existence of the document, as a condition precedent for claiming leave to produce the secondary evidence. He further submitted that the provisions of Section 63 of the Evidence Act goes hand in hand with Section 65 of the Evidence Act and the applicant is required to state and prove that the original of the said document was executed and the photocopy being placed is a copy created through mechanical process, which ensures the accuracy as envisaged under sub-section 2 of Section 63 of the Evidence Act. 8. Learned counsel for the respondent further contended that the bald assertion of the plaintiffs about the theft cannot be accepted by the Court in absence of an affidavit in its support. He emphasised that an affidavit stating the existence of the document with the assertion that the photocopy has been generated out by the mechanical process of the said original is a sine qua non of a valid application seeking permission to lead secondary evidence under Section 65 of the Evidence Act. Learned counsel for the respondent placed heavy reliance upon judgment of Hon'ble Supreme Court in the case of J. Yashoda v. K. Shobha Rani, reported in (2007) 5 SCC p. 30. He particularly read para 8 and 9 of the said judgment to lend support to his argument that in order to enable a party to produce secondary evidence, it is necessary for the party to first prove existence and execution of the original document. 9. Treading his arguments ahead, learned counsel for the respondent referred to a judgment of this Court in case of Gopal Lal v. Shri Nathu Ram and Ors., reported in 2016 (1) WLC (Raj.) UC 723, wherein this Court has held that applicant is required to prove existence of the document, photocopy whereof is being sought to be laid as secondary evidence. While reading para 5 of the said judgment Mr. Bishnoi contended that photocopy of the agreement to sell in the present case, cannot be accepted as a secondary evidence. Para 5 of the above judgment, referred by him is being reproduced hereunder:- "5. Indisputably, the suit has been filed by the petitioner claiming the right on the strength of agreement of sell dated 20.07.2009 but, neither the original nor the photostat copy thereof was placed on record by the petitioner before the Court at the time of presentation of the plaint as mandated by Order 7, Rule 14 (1) C.P.C. That apart, in the application preferred. It is nowhere stated that the photostat copy sought to be produced on record, was made by its original and the same is true reproduction thereof. It is settled law that before admitting the photostat copy of the document as secondary evidence, the existence of the original must be proved. Further, in case where there was no proof of accuracy of the photostat copy or of its having been compared with or being reproduction of original, it cannot be considered as secondary evidence. In this view of the matter, the Court below has committed no error in observing that the document sought to be produced cannot be considered to be secondary evidence." 10. Learned counsel for the respondent thereafter cited another judgment in case of Maharana Mahendra Singh Mewar v. Arvind Singh and Another, reported in 2015 (2) WLC (Raj.) 582, wherein this Court finding the application supported by affidavit and the document being typed and unsigned, having no endorsement thereupon being copy of the original document in question, has held that such copy is impermissible to be admitted as secondary evidence. 11. Yet another judgment of this Court has been placed on Board by Learned counsel in case of Anil Kumar and Ors. v. Shankar Lal, reported in 2032 WLC (Raj.) (UC) p. 220 and para 5 to 7 were read to derive home his view point, which are reproduced hereunder:- "5. A bare perusal of the provisions of section 65 of the Indian Evidence Act reveals that copies made from or compared with the original fall in the category of secondary evidence and if the secondary evidence is placed before the Court that may be admitted to an evidence, but in the instant case the photostat copy of the document has been filed, which does contain any certificate that it was made from the original or compared with the original. In the absence of any certificate on the disputed document, the same could have been admitted to evidence by the Court. The learned Trial Court in the light of the judgment of Smt. J. Yashoda has rightly dismissed the application and further rightly denied to admit the said document (Photostat copy) to evidence. 6. The argument advanced by the learned counsel for the petitioners is found to be totally devoid of substance and the same is sustainable. E converse the impugned order is found to be just and proper and suffers from no factual or legal infirmity and to my firm view, warrants no intervention. 7. For the reasons stated above, the writ petitioner fails and the same being devoid of any merit deserves to be dismissed at the threshold and the same stands dismissed accordingly." 12. Before adverting to judgment cited by the rival counsels for the parties, it would be appropriate to first understand the import and purport of the statutory provisions, around which the controversy revolves. 13. Section 65 of the Evidence Act reads that "Secondary evidence may be given of the existence, condition or contents of a document in following cases". Opening words of Section 65 of the Evidence Act therefore, permits secondary evidence of a document for its existence, conditions or contents. The Act of 1872 thereafter proceeds to enumerate various contingencies in the form of sub-clause-(a) to (g). 14. In sub-clause (a), the Act has used words "when the original is shown or appears to be in possession or powers", on similar lines, sub-clause (b) of Section 65 the Evidence Act uses the expression "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;......." 15. A conjoint reading of the above clauses (a) and (b) of Section 65 of Evidence Act shows that while cataloguing the contingencies, the Act of 1872, has required the concerned party to prove or show the existence of the original only in these two situations; whereas in other clauses from (c) to (g), such expression is conspicuously absent. The latter part of Section 65 of the Evidence Act prescribes the kind of secondary evidence and mode of proving it. 16. As far as the contingency mentioned in clause (c) is concerned, first proviso to Section 65 of the Act stipulates that in case of (a), (c) and (d), any secondary evidence of the existence, condition or contents of the document is admissible. 17. As such, it is clear that in cases falling under clause (c), any type of secondary evidence is admissible in evidence and since proof of existence is a precursor in the situation covered by clause (c), the requirement of proving the existence cannot be read, particularly in view of the absence of the expression, as is used in Clause (a) and (b) of Section 65 of the Evidence Act. 18. That takes us to another important question, "what is the secondary evidence." 19. Section 63 of the Act of 1872 answers that question categorising various types of documents, which would be treated to be a secondary evidence. The present case falls within the sweep of sub-section (2) of Section 63 of the Act, being a photocopy of the agreement to sell. 20. In considered opinion of this Court, a party seeking leave to produce secondary evidence, first of all, will have to show the fact situation covered by any one of the categories encapsulated under Clause (a) to (g) of Section 65 and then to specify as to which type of secondary evidence, he seeks to adduce in evidence. 21. In the present case the petitioners' have made out a case falling under Clause (c) of the Section 65 of the Evidence Act indicating in their application that the original document dated 26.12.1991 had been stolen, while he was travelling in a bus and further that he is having a photocopy of the same. Such assertion has been made by the plaintiffs in the plaint, while indicating in the plaint itself that at the time of leading evidence, requisite permission under Section 65 of the Evidence Act would be obtained. 22. The argument of Mr. Bishnoi has been, that the petitioners are required to first prove that the photocopy of the agreement to sell being sought to be produced in evidence is a photocopy of the original, made by a mechanical process which ensures accuracy; and so also the existence of the original document itself. His assertion that it is required of the Court to decide the same, while deciding application under Section 65 of the Act, is in a way, putting the cart before the horse. Since Section 65 itself permits secondary evidence to be given for existence, condition or contents of the document, this Court is of the view that even the existence of the document can be proved and/or questioned while leading requisite evidence for proving the contents, conditions and genuineness of the document, by way of leading appropriate evidence. All the three conditions namely existence, condition or contents of the document may be proved by way of secondary evidence, if the provisions of Sections 65 and 63 are homogeneously and harmoniously construed. 23. The only exceptions are the cases falling in the ambit of Clause (a) and (b) of Section 65 of the Evidence Act, which clauses themselves require existence of the original to be shown or proved at the time of submitting the application itself under Section 65. 24. In this view of the matter, the argument of Mr. Bishnoi that the petitioners are required to prove the existence of the original agreement, is sustainable. The existence and genuineness of the documents can be established by evidence and the same need and cannot be proved at the threshold or at the time of deciding the application. If this argument is accepted, then the Court will have to conduct fragmented enquiry, first to prove the existence of the document for deciding the application and then at second stage to prove the contents, conditions, proper execution, or genuineness thereof. 25. Coming to the judgment cited by Mr. Bishnoi in case of J. Yashoda (supra), particularly observation made in para 9 thereof, it may be stated that a first look thereat gives an impression that the party producing the secondary evidence should first prove the existence and execution of the original document. However a deeper scrutiny of the said judgment reveals that the case before Hon'ble Supreme Court was that of Clause (a) of Section 65 which presupposes, proving the existence of original in the possession or powers of the person, against whom the document is said to be proved. In considered view of this Court, the judgment of Hon'ble Supreme Court in J. Yashoda (supra) does apply to the cases falling under Clause (c) of Section 65 of the Evidence Act. It may be added that such view has already been expressed by the Court, in a judgment dated 06.02.2016 in case of Kishore Kumar v. Chando and Ors., reported in 2015 (3) WLN 273. 26. As far as the other judgments relied upon by learned Respondents' counsel are concerned, they are essentially based upon the judgment of Hon'ble Supreme Court in case of J. Yashoda (supra), without noticing the fact whether the case falls under Clause (a) or (c) of Section 65 of the Evidence Act. 27. On the contrary, judgments cited by Mr. G.J. Gupta particularly in case of Omkar Lal (supra) and Ramchandra (supra) are squarely applicable in the facts of the present case in as much as both the cases relate to the document(s) falling under Clause (c) of Section 65 of the Evidence Act. 28. The argument advanced by learned counsel for the Respondent that the application was incompetent and non maintainable in wake of the above discussion, is liable to be rejected and hence rejected. Firstly, the petitioners' consistent stand has been that the original agreement to sell dated 25.10.1991 has been lost and the same is untraceable; such assertion by itself is enough to bring his case within the ambit of Clause (c) of Section 65 of the Evidence Act. The version of the plaintiffs that the original document has been lost, itself is enough to indicate or explain plaintiffs' plea that the said document in original did exist. 29. Adverting to the requirement of filing affidavit, in absence of any statutory requirement, this Court is of the firm view that an application cannot be thrown, merely because it is supported by an affidavit. The requirement of affidavit, even if presumed to be necessary, deserves to be done away with, as the plaintiffs had come out with the categorical case and assertion that original had been lost, even at the stage of filing the plaint, which plaint was supported by an affidavit. Even otherwise, the requisite affidavit can be permitted to be filed subsequently, as held by Hon'ble Supreme Court in case of State of Rajasthan v. Khemraj, reported in (2000) 9 SCC 241. 30. The third contention of the Respondent that the petitioners have stated that "the copy being placed as secondary evidence is a copy generated by mechanical process, which ensures the accuracy" is equally fallacious. The term photocopy itself is a synonym of process of preparing copy by xerox machines, which produces a photographic reproduction of the document, by a process involving the action of light. As such the assertion of the plaintiffs that it is a photo copy, is capable of conveying the meaning that the copy generated is by a mechanical process, which ensures accuracy. It is to be noted that in the year 1872 when Section 63 of the Evidence Act was introduced, the xerox machines were even invented (the Photostat machine was invented in 1938), hence sub-section (2) of Section 63 of the Evidence Act, provides inherent checks to ensure accuracy. As such the recital as proposed by the Respondents would be an empty formality, which even if made, cannot do away with the requirement of proving its existence veracity. 31. In view of what has been discussed, the writ petition is allowed. The order impugned dated 26.08.2016 is quashed and set at naught. The application filed by the petitioners' under Section 65 of the Evidence Act is allowed and the photocopy of the agreement dated 26.12.1991 is ordered to be taken on record. 32. It is clarified that merely because the document has been let in the file of the trial Court, the same per se would be a proof of the existence of the document. As held by this Court that after taking the document on record, the party relying upon it, will have to prove its existence and execution so also its contents and conditions. Needless to observe that the respondent/defendant shall be permitted to raise all just objections regarding admissibility of the document in the teeth of the provisions of Registration Act and Stamp Act. The objection as and when raised, shall be decided by the learned Trial Court, in accordance with law. Any observation made by this Court consciously or otherwise touching upon admissibility of the document shall come in the way of learned Trial Court to decide the same. 33. The petitioners-plaintiffs shall also have a right to take all other defense; including request for impounding and sending the document for determination of appropriate stamp duty, while marking the document as exhibit. With these observations the writ petition is allowed, without any order as to cost. "
(3.) Learned counsel for the respondent refuted the same.;