V.S.Kokje, J. - (1.) This revision petition is directed against rejection of an application filed by the revision petitioner-defendant for taking photo-copies of a document which is said to have been lost from the custody of the defendant-revision-petitioner. The defendant in his defence submitted photo-copies of an agreement and receipt dated 20-1-86 in the Court. At the time of evidence, the defendant moved an application for permission to lead secondary evidence in support of these documents as according to him the originals were lost while in his custody and he is not able to trace them. The plaintiff objected by contending that the documents did not bear signatures of anyone and therefore cannot be treated to be a secondary evidence of any other document. It has also been contended that the receipt dated 20-1-1986 was not executed by the plaintiff. It was further contended that while being examined under Order 10 of the CPC, the defendant had admitted that he did not know Uttarn Chand and did not have any transaction with him and now he wants to put in secondary evidence about some agreement between him and Uttam Chand. The Trial Court observed that defendant Maharaj Kumar Chand in his statement under Order 10, CPC had clearly admitted that he had not entered into any agreement with Jodhpur Film Distributors and the plaintiff had not taken any money. The Court also observed that the copy of the agreement which is sought to be put in secondary evidence does not bear the signature of the parties and it was not clearly established that the original documents were lost and are not being traceable. The Trial Court therefore rejected the prayer.
(2.) It is being contended by the learned Counsel for the revision petitioner before me that loss of document can be proved by the statement of the defendant alone because he was in custody of the documents. When he has stated in affidavit that he had lost the documents, there could be no other evidence >to contradict him and therefore, the question was of the credibility of his statement. If the Trial Court was not satisfied by statement on oath in an affidavit it could have permitted cross-examination on the affidavit of the defendant, but could not have rejected the averments in the affidavit outright. It was also contended that when photo-copies of the documents were already on record and there is no material on record to show that the defendant was playing a deliberate mischief, the secondary evidence should have been allowed to be led. The learned Counsel for the non-petitioner in reply submitted that if the statements of the parties are taken on their face value, no application under Section 65 of the Evidence Act for permission to lead secondary evidence on the ground of loss of documents could be rejected and the parties would be at the mercy of the otherside and will have to contend with secondary evidence of non-existing documents.
(3.) 1 have carefully considered the question involved in this case. The difficulty of a person who has genuinely lost a document is understandable. When he states on oath that the originals in his custody have been lost, in most of the cases, he may not have any other evidence to prove the loss except his own knowledge, corroboration being almost impossible in such cases. Even if it is possible to give some evidence of the existence of the document and of the fact that document was in the custody of a party, hardly any evidence except the evidence of the party himself may be available of the loss of the document. In any case a party cannot be shut out from contending that he was in the custody of the originals at a particular time and subsequently lost them. Thus he is expected to do by an affidavit only because there is no other practical method, by which it can be inquired into as to whether conditions for allowing secondary evidence to be led exist or not. If oral evidence is taken on the question of the custody and the loss of the documents or on the general question as to whether pre-requisites of Section 65 of the Evidence Act have been fulfilled or not. it would result in a trial within trial. Section 65 of the Evidence Act does not envisage an application for permission of the Court to lead secondary evidence. It provides that the secondary evidence may be given on the existence, conditions or contents of the documents. It cannot therefore be said that a person who desires to lead secondary evidence has to apply to the Court for permission to do so and that permission is to be granted after deciding by taking evidence as to the existence of the circumstances in which a party may lead secondary evidence. It appears in the scheme of things that a party may offer secondary evidence to be given of the existence, condition or contents of a document by filing an affidavit stating the grounds on which he seeks exemption from production of primary evidence and wants to lead secondary evidence. The question as to whether a party has made out a case for leading secondary evidence or not should normally be decided on the basis of affidavits filed by the parties.;