Dismissed

Bihari and Ors. v. Gyarsi Devi and Ors.

Rajasthan HC12 Sept 2022CW/11435/2018

Case brief

AI extract

What is this about?

Writ petition challenging the trial court's order allowing secondary evidence in a civil suit where the original document was claimed to be destroyed in fire. The High Court rejected the counsel's argument that existence must be strictly proved first, finding the lower court's conditional order lawful. Petition dismissed with directions to proceed expeditiously.

What did the court decide?

Writ petition dismissed; interim order vacated; trial court directed to proceed expeditiously.

Bihari and Ors. Vs Gyarsi Devi and Ors. — Civil Procedure and Limitation | Rajasthan HC (2022)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Writ Petition No. 11435/2018

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Bihari

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Manohar

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Both Sons Of Shri Arjun Dhobi, residents Of Antella, Tehsil Virat Nagar, District Jaipur, Rajasthan

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Raj Kumar Son Of Shri Bihari, Residents Of Antella, Tehsil Virat Nagar, District Jaipur, Rajasthan

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----Petitioners

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Versus

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Gyarsi Devi Widow of Late Shri Phulla, Resident Of Antella, Tehsil Virat Nagar, District Jaipur, Rajasthan

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Puran

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Rajendra

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Vikram, All Sons Of Late Shri Phulla, Resident Of Antella, Tehsil Virat Nagar, District Jaipur, Rajasthan

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Rohitash Son Of Shri Phool Chand Dhobhi

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Ramu Son Of Shri Nathu

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Balram Son Of Shri Nathu

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Prem Devi Wife Of Shri Ramu

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Bhagirath Son Of Shri Chhotu Ram, All Residents Of Antella, Tehsil Virat Nagar, District Jaipur, Rajasthan

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Tehsildar, Tehsil Virat Nagar, District Jaipur, Rajasthan.

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----Respondents

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For Petitioner(s) : Mr. Rajesh Chaturvedi, Adv. for Mr. Manoj Kumar Bhardwaj, Adv. For Respondent(s) : Mr. Jitendra Chaudhary, Adv. for Mr. Rajesh Kumar Sharma, Adv.

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HON'BLE MR. JUSTICE ASHOK KUMAR GAUR

Order

12/09/2022

(2 of 5)

[CW-11435/2018]

This writ petition has been filed by the petitionersdefendants, challenging the order dated 26.04.2018, whereby, application filed by the respondents-plaintiffs, under Section 65 of the Indian Evidence Act, 1872, has been allowed and secondary evidence has been allowed in respect of a document, which was said to be destroyed in fire.

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Learned counsel for the petitioners submitted that the Court below has committed an error in allowing the application filed by the respondents, as they did not satisfy the requirement of filing secondary evidence, as per Section 65 of the Indian Evidence Act, 1872.

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Learned counsel for the petitioners submitted that though, secondary evidence can be given but the existence of the document is required to be proved and even if the assertion of losing the original document in fire was to be believed, the respondents ought to have produced the other copy of the document which was available with the Panchayat record.

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Learned counsel for the petitioners further submitted that the Gram Panchayat concerned, had already treated the respondents as encroachers over the disputed land and as such, by permitting the respondents to lead secondary evidence, the Court below has committed serious error of law.

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Learned counsel for the petitioners also placed reliance on the judgment passed by the Apex Court in the case of J. Yashoda Vs. K. Shobha Rani, (2007) 5 Supreme Court Cases 730.

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Learned counsel for the petitioners on the strength of said judgment, submitted that the requirement of leading secondary evidence is to first give the proper explanation and the

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(3 of 5)

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[CW-11435/2018]

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concomitant requirement is to prove existence and execution of the original document.

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Learned counsel for the petitioners submitted that in the present facts of the case, the Court below has not asked the respondents to comply with these twin mandatory conditions and as such, the order is required to be set aside.

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Learned counsel appearing for the respondents submitted that the Court below has passed the order after considering the scope of leading secondary evidence.

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Learned counsel for the respondents submitted that there are two kind of evidence which can be led in civil suit and in case the primary evidence in respect of document is not available for production and inspection of the Court, the said document can also be proved by way of secondary evidence.

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Learned counsel submitted that the respondents had clearly stated in their application that the document in question-Patta was lost in fire and the same fact was proved by way of an application submitted before the Panchayat for grant of copy of the Patta and on the application submitted by the respondents, the Gram Panchayat had narrated the fact of non-availability of the document, due to fire which had broken out in office of the Gram Panchayat.

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Learned counsel for the respondents further submitted that the conditions which have been enumerated under Section 65 of the Indian Evidence Act, 1872, had duly been complied with and if the original document is destroyed or lost and it is not possible for a party to produce the same even after exercising the due care and without their own fault or negligence, then such document is

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(4 of 5)

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[CW-11435/2018]

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taken as secondary evidence and contents of document will be admissible.

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Learned counsel for the respondents submitted that the

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Court has passed the conditional order asking the respondents to file an affidavit and only after filing of the said affidavit, the application of the respondents will be allowed.

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I have heard the submissions made by learned counsel for the parties and perused the material available on record.

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This Court finds that the Court below has given a direction to the respondents to file an affidavit with respect to their averments made in the application for taking secondary evidence on record. The condition of filing affidavit will necessarily comply with the pre-conditions of Section 65 of the Act of 1872 and the respondents, whatever stated in their application, would say on oath in the affidavit that the original documents have been destroyed in the fire.

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The submission of the learned counsel for the petitioners that the secondary evidence of a document can be admissible if the existence of document itself can be proved, this Court is afraid to accept the submission made by learned counsel for the petitioners and bare perusal of sub-Clause (C) of Section 65, clearly provides that if the original document has been destroyed or lost or when the party offering evidence of the contents of a document, for any reason not arising of any default or neglect, cannot produce the document, then the secondary evidence has been found to be admissible in respect of contents of document.

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The submission of learned counsel for the petitioner that the Apex Court in the case of J. Yashoda Vs. K. Shobha Rani (supra) has explained the scope of Section 63, relating to leading

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(5 of 5)

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[CW-11435/2018]

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secondary evidence and requirement of fulfilling twin conditions as per Section 65 of the Indian Evidence Act, 1872, this Court after looking into the judgment passed by the Apex Court, finds that the condition for the secondary evidence to be led by a party arises after proving the fact that the primary evidence is not in possession of the said party.

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This Court finds that if one of the contingency is about destroying or losing the document, in such eventuality, the question of leading secondary evidence arises and if the party concerned gives an affidavit that such document has been destroyed or lost, then the Court is clothed with the power for taking into account the secondary evidence, which is led by the party concerned.

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This Court does not find any error being committed by the Court below while passing the order impugned and accordingly the present writ petition stands dismissed. The interim order passed by this Court stands vacated and the trial Court is directed to proceed expeditiously in the suit.

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(ASHOK KUMAR GAUR),J

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Bhavnesh Kumawat/Ramesh Vaishnav

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Bihari and Ors. v. Gyarsi Devi and Ors.

Case brief

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Bihari and Ors. v. Gyarsi Devi and Ors.

Case brief

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