Allowed

Daulat Ram v. Baiju Batham

Rajasthan HC11 May 2023CW/6053/2015

Case brief

AI extract

What is this about?

The High Court quashed an order allowing the admission of secondary evidence (a photocopy of a rent note). The Court held that the document lacked signatures and foundational evidence, making its admission impermissible and a patent error of law under Section 65 of the Indian Evidence Act.

What did the court decide?

The impugned order of 03.04.2015 allowing secondary evidence was quashed and set aside. The trial was directed to be expedited.

Daulat Ram Vs Baiju Batham — Civil Procedure and Limitation | Rajasthan HC (2023)

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[2023/RJJP/010417]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Writ Petition No. 6053/2015

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Daulat Ram Son Of Shri Bhawani Singh Kushwah, Hospital Road, Hardev Nagar, Dholpur

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----Petitioner

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Versus

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Baiju Batham Son Of Shri Bhagwan Das, Mohalla Patpara, Dholpur

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----Respondent

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For Petitioner(s) : Mr. Abhi Goyal For Respondent(s) : Mr. Nikhlesh Katara

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HON'BLE MR. JUSTICE SAMEER JAIN

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Order

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11/05/2023

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The present writ petition is filed under Article 227 of Constitution of India assailing the impugned order dated 03.04.2015 whereby the application filed by the plaintiffrespondent under Section 65 of Indian Evidence Act, 1872 (for short “Act of 1872”) to lead photo-copy of rent note as secondary evidence was allowed.

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Learned counsel for the petitioner submits that plaintiffrespondent, who claimed himself to be tenant of the defendantpetitioner, filed a civil suit for permanent injunction. The defendant-petitioner filed his written submission and specifically denied that the shop in question was ever let out by the defendant-petitioner to the plaintiff-petitioner. Learned counsel for the petitioner submits that the purported lease deed/rent note is false and fabricated, it is neither stamped nor signed by the

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petitioner or any witness. Learned counsel for the petitioner contends that the court below has wrongly passed the impugned order dated 03.04.2015 whereby application of the plaintiffrespondent to lead secondary evidence (the photocopy of purported lease deed/rent note) has been allowed. Learned counsel further contends that the plaintiff-respondent had to first prove the existence of a document and only thereafter the permission to lead secondary evidence could have been granted. In support of his contentions, learned counsel for the petitioner has relied upon Apex Court judgment of Smt. J. Yashoda vs. Smt. K. Shobha Rani reported in AIR 2007 SC 1721 and judgment of this Court in the case of Ram Pratap vs. Nar Singh Lal (S.B. Civil Revision No. 453 of 1984; decided On: 26.07.1988) reported in 1990 (1) RLR 339 .

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Per contra , learned counsel for the plaintiff-respondent has opposed the contention of the petitioner. Learned counsel for the plaintiff-respondent submits that the original copy of the rent note was in the possession of the defendant-petitioner and therefore the plaintiff-respondent was forced to produce the photocopy of the same. Learned counsel for the plaintiffrespondent further submits that the rent note/lease deed was executed for a period of eleven months and as per Sections 105 and 107 of Transfer of Property Act, 1882 (for short “Act of 1882”) a lease deed executed for a period below 1 year is not required to be stamped or registered. Learned counsel for the plaintiffrespondent contends that the court below was not required to go into the merits of the secondary evidence at this stage and the genuineness of the rent note/lease deed have to be established by

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leading evidence at appropriate stage, at which stage even the defendant-petitioner can challenge the same on merits. Learned counsel for the plaintiff-respondent has also relied upon Apex Court judgments of Jagmail Singh & Anr. Vs. Karamjit Singh & Ors. reported in (2020) 5 SCC 178 and Rakesh Mohindra vs. Anita Beri and Ors. reported in (2016) 16 SCC 483 .

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Heard the arguments advanced by both the sides, scanned the record of the writ petition and considered the judgments cited at Bar.

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The issue at hand pertains to admissibility of secondary evidence. It is well settled that if a party wishes to lead secondary evidence, the Court is obliged to examine the probative value of the document produced in the Court or their contents and decide the question of admissibility of a document in secondary evidence. At the same time, the party has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. It is equally well settled that neither mere admission of a document in evidence amounts to its proof nor mere making of an exhibit of a document dispense with its proof, which is otherwise required to be done in accordance with law.

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The admission of secondary evidence is not automatic. Secondary evidence is the exception to the general rule and the party seeking admission of secondary evidence must lay down the factual foundation. In the case in hand, the existence and content of the purported rent note/sale deed is specifically denied. Further, the rent note/lease deed is neither stamped nor registered; it is neither signed by both the parties, nor attested by witnesses. The

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reliance on Sections 105 of 107 of the Act of 1882 is also misconceived because even if there was no requirement of getting the rent note/lease deed registered, the requirement of getting the signature of both the parties cannot be dispensed with. Even the ratio of the judgments of Jagmail Singh (supra), relied upon by learned counsel for the plaintiff-respondent, supports the case of the petitioner as it was held in that case that foundational evidence has to be given being reason as to why original evidence has not been furnished.

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Although merely marking a document as an exhibit does not make it above challenge, the Court has to be vigilant about the probative value of the document/secondary evidence. If the contention of the learned Counsel for the plaintiff-respondent, that merit of the document can be challenged at appropriate stage, is accepted at its face value, it would tantamount to making the admission of each and every document as secondary evidence automatic and the trial would consequently never come to an end. The purported rent note/lease deed does not bear the signature of the petitioner and therefore the petitioner is not bound by it. The admission of such a document which is prima facie not binding on the petitioner, even if allowed to be proved by adducing additional evidence, would be of no consequence and would only delay the trial.

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In view of the above, this Court is of the view that the impugned order dated 03.04.2015 passed by the learned Court below suffers from material irregularity and patent error of law as the Court below has allowed automatic admission of secondary

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evidence. The impugned order dated 03.04.2015 cannot be sustained and is hereby quashed and set aside.

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