Dismissed

Sapna Advertising and Anr. v. Taurus International and Anr.

Punjab & Haryana HC13 Sept 2011CR/5568/2011

Case brief

AI extract

What is this about?

This revision petition challenged the dismissal of an application to lead secondary evidence for carbon copy bills. The Single Judge held that no foundation was laid under section 63 for the evidence, the case was distinguishable from cited precedent, and the order commanded no patent illegality.

What did the court decide?

The revision petition was dismissed, affirming the trial court's order refusing permission to lead secondary evidence.

Sapna Advertising and Anr. Vs… — Contract and Commercial Disputes | Punjab & Haryana HC (2011)

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Civil Revision No. 5568 of 2011 --1--

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IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH

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Civil Revision No. 5568 of 2011 Date of decision. 13.09.2011

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Sapna Advertising and another

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.... Petitioners

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Versus

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Taurus International and another

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...... Respondents

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CORAM: HON'BLE MR. JUSTICE VIJENDER SINGH MALIK

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Present: Mr.Aman Bahri, Advocate for the petitioners.

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Vijender Singh Malik, J.

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The present petition has been brought by the plaintiffs against the order dated 22.3.2011(Annexure P16) passed by learned Civil Judge (Junior Division), Chandigarh whereby the application of the petitioners for leading secondary evidence was dismissed.

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The plaintiffs filed a suit for recovery of Rs.80,000/- plus Rs.3200/- as interest against the respondents on the ground that the defendants had been publishing their advertisements in various newspapers from the plaintiffs and bills were being issued against those advertisements to the defendants. The defendants had a running account with the plaintiffs. The photocopies of the bills(Annexure P4 to P-14) had been annexed with the plaint. Telling about some payments made by the defendants and some deduction on account of the excess billing, it is claimed that an amount of Rs.80,000/- remains still due from the defendants.

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Civil Revision No. 5568 of 2011 --2--

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The defendants did not deny the business relationship with the plaintiffs. They have claimed that some bills were issued to the defendants but the same did not contain any details of the services provided by the plaintiffs.

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Claiming the counter foils prepared by using carbon paper, of which Annexure P-4 to P-14 are the photocopies, to have been lost/misplaced, prayer has been made for permission to lead secondary evidence to prove the contents of those documents.

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The application was replied by the defendants and vide order dated 22.03.2011 learned Civil Judge (Junior Division), Chandigarh dismissed the application.

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Dissatisfied with the impugned order, the plaintiffs have brought this revision-petition.

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I have heard Mr. Aman Bahri, learned counsel for the revision-petitioner and have gone through the documents placed on the file.

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Learned counsel for the revision-petitioner has submitted that the defendants-respondents have admitted genuineness of the bills produced by the plaintiffs. According to him, although they have claimed that those bills did not contain any details of the services provided by the plaintiffs, yet the fact that the originals are with the defendants would be proved by this reply of the defendants. He has submitted that it was admitted that notice was not given to the

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Civil Revision No. 5568 of 2011 --3--

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defendants to produce the originals. According to him, under the proviso to section 66 of the Evidence Act, notice was not required to be given to the other party to produce the originals. He has submitted that the carbon copies of which Annexure P-4 to P-14 are photocopies had been misplaced by the plaintiffs and , therefore, their case is covered by section 65 clause (a) of the Evidence Act. He has even cited before me a decision of this Court in P.K. Gupta v. Varinder Sharma, AIR 2002 Punjab & Haryana 342 in support of his submissions.

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Under section 65 of the Evidence Act, situations are mentioned in which secondary evidence relating to the existence, condition or contents of a document could be given. Clause (a) of section 65 of the Evidence Act deals with the situation where 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. Section 66 of the Evidence Act, lays down a bar to the leading of the secondary evidence of the contents of the document, referred to in section 65, clause(a) if the party proposing to give such secondary evidence has not given to the party in whose possession or power the document is or to his attorney or pleader such notice to produce the document as is prescribed by law. If no notice is prescribed by law, then the notice required to be given would be such notice as the court considers reasonable under the circumstances of the case. The proviso to section 66 provides some exceptions to this rule. I could not find the case of the petitioner to be covered by any of the clauses in this proviso.

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Civil Revision No. 5568 of 2011 --4--

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The suit was filed in the year 2006 and the application for secondary evidence has been filed in the year 2009. The photocopies of the carbon copies of the bills had been prepared while filing the suit. There is no case of the plaintiffs/petitioners of having renovated their premises or having shifted their place of work or any other such cause for misplacement or loss of the documents. The documents placed on the file are just photocopies of the carbon copies of the documents and they do not fall in any one of the categories of secondary evidence defined in section 63 of the Evidence Act.

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The above mentioned circumstances distinguish the facts of this case from the facts of P.K. Gupta v. Varinder Sharma's case (supra) because the proper foundation for leading the evidence as had been done in the reported case has not been laid in this case. The petitioner also does not seem to be coming to the court with clean hands. Therefore, the ratio of that case would not stand attracted to the facts of this case.

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Consequently I find no patent illegality in the order passed by learned trial court. The revision petition is accordingly dismissed.

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(VIJENDER SINGH MALIK) JUDGE

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13.09.2011 dinesh

Sapna Advertising and Anr. v. Taurus International and Anr.

Case brief

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Sapna Advertising and Anr. v. Taurus International and Anr.

Case brief

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