Partly allowed

Sunil Kumar Gupta v. M/S. Shrey Associates

Rajasthan HC6 Nov 2023CW/13352/2021

Case brief

AI extract

What is this about?

Writ petition challenging the trial court's order allowing a fresh Section 65 application for secondary evidence after a prior application for production was dismissed. High Court modified the order to admit the document as a 'Mark' contingent on proof of original's existence.

What did the court decide?

Impugned order modified to allow the document on record as Mark 'A' subject to objection regarding original's existence.

Sunil Kumar Gupta Vs M/S. Shrey Associates — Civil Procedure and Limitation | Rajasthan HC (2023)

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[2023:RJ-JD:38194]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Writ Petition No. 13352/2021

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Sunil Kumar Gupta S/o Shri Prem Prakash Gupta, aged about 65 Years, General Secretary and CEO and Representative - Knowledge Education Foundation (Regd.) Delhi Public School (Registered Society) Under The Societies Registration Act, 1860. Regd. Address- S-362, Greater Kailash-II, New Delhi - 110048 and Alternate Add.- E-15, Kanta Khaturia Colony, Bikaner (Raj.). ----Petitioner Versus M/s. Shrey Associates, Regd. Partnership Firm S-33/34, J.D.A. Shopping Centre, Amrapali Circle, Vaishali Nagar, Jaipur (Raj.) - 302021.

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----Respondent

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For Petitioner(s)	: Mr. Muktesh Maheshwari
	Mr. Keshav Pareek
For Respondent(s)	: Mr. Deepak Chouhan
	Mr. Ramit Mehta(through VC)

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HON'BLE MR. JUSTICE ARUN MONGA

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Order

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06/11/2023

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Under challenge herein is an order dated an order dated 19.07.2021 passed by Commercial Court No.1, Jodhpur, whereby it allowed the plaintiff/respondent's application under Section 65 of the Evidence Act to introduce a photocopy of a document (dated 27.07.2009) as secondary evidence in a recovery suit of Rs.2,69,48,827.58.

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It transpires, that initially the plaintiff had filed an application under Section 65 of Evidence Act but it was withdrawn. Later, he filed another application under Order 11 Rule 12 & 14 of the CPC, claiming the original document was in the possession of

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the petitioner-defendant. The defendant denied having the document. The Trial Court dismissed the said application on 21.12.2019. Confronted with the said dismissal, the plaintiff then again re-filed fresh application under Section 65 ibid to exhibit the same document by way of secondary evidence. The defendant objected to it, citing the previous withdrawal of a similar application. Despite this objection, the Trial Court, allowed the application on 19.07.2021. The petitioner challenges the propriety of this decision.

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I have heard learned counsel for petitioner and perused the case file.

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Learned Counsel for the petitioner submits that the learned Trial Court has failed to consider the true nature and scope of the application as well as controversy involved in the present case. It has thus wrongly allowed the application preferred by the plaintiff under Section 65 of the Evidence Act. He further submits that Apex Court as well as various High Courts have repeated observed and held that it is a pre-requisite/mandatory on the part of applicant who seeks permission for secondary evidence to first establish the existence of the documents. However, in the present case, the plaintiff has failed to establish said mandatory condition. Despite that the learned Trial Court has allowed the said application without considering the significant aspect of the matter and reached to the erroneous conclusion.

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4.1. He asserts that the plaintiff-respondent had earlier preferred an application under Order 11 Rule 12 & 14 seeking direction to be issued to the defendant-petitioner to produce the document dated 27.07.2009. In response a detailed reply was filed while

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denying the execution of document. After considering the entire facts, the learned trial Court dismissed the said application vide order dated 21.12.2009. Per the knowledge of the petitioner, the plaintiff did not challenge the said order and therefore, the same has become absolute.

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4.2. Argument is that it to overcome above said order, that the plaintiff later filed an application under section 65 supra, on the same set of facts seeking permission to produce the said document as secondary evidence. The learned Trial Court having once passed the appropriate aforesaid order on 21.12.2019, could not have allowed the subsequent application in question.

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Heard.

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What boils down here is a very narrow controversy i.e. plaintiff having earlier filed an application under section 65 of the Evidence Act, seeking production of document in question on record by way of secondary evidence, pleading that the original was not in his possession, could he have re filed another application for the same after withdrawing the earlier one ?

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Concededly, it was on an objection raised by the defendant (petitioner herein) that the plaintiff had withdrawn the earlier application vide order dated 24.10.2019. Subsequently, the plaintiff filed a new application under Order XI Rule 12 & 14 CPC, seeking indulgence of the trial Court, directing the defendant to produce the original of the same document for which a photocopy had previously been sought to be placed on record under Section 65 of the Evidence Act. Vide detailed order 21.12.2019 (Annexure- 6), the Trial Court dismissed the said application,

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giving a finding that the original was since not in possession of the defendant, therefore, no such direction could be issued.

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7.1. Confronted with the above said order, it appears that the plaintiff was advised to file another application under Section 65 of the Evidence Act, citing a change in circumstances that since the original is neither in possession of the plaintiff nor in possession of the petitioner-defendant, in fact the defendant not only pleaded non-possession of the document but also contested its very existence, implying that the plaintiff may have fabricated the secondary evidence.

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Be that as it may, rules of procedure are handmaid of justice. They cannot be allowed to thwart real and substantial justice between the parties and the substantive adjudication of the issue ought not to suffer on account thereof. In the premise, I am of the view that in order to meet the ends of justice, the document sought to be taken on record ought to be permitted but instead of being put as an exhibit it shall rather kept as Mark “A” on the relevant part of the file, subject, of course, to the right of petitioner to object to it being read in evidence, unless the plaintiff is able to prove its existence by adducing evidence with regard to the existence of the original thereof. The controversy qua the existence of the original document is thus kept open for adjudication by the learned trial Court, based on the evidence presented by both parties qua the same. Needless to say, if the finding is rendered that the original never existed, the inclusion of document on record would be rendered meaningless.

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Accordingly, the impugned order stands modified to that extent and the instant writ petition is disposed of. Pending application(s), if any, shall also stand disposed of.

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(ARUN MONGA),J

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113-Dharmendra/Jatin -

Sunil Kumar Gupta v. M/S. Shrey Associates

Case brief

What is this about?

What did the court decide?

Sunil Kumar Gupta v. M/S. Shrey Associates

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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