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Whether permission to adduce secondary evidence amounts to proof of that document?

In the High Court of Bombay
Civil Appellate Jurisdiction
(Before Shalini Phansalkar-Joshi, J.)

Rajendra Mahadev Todkar,
v.
M/s. Paranjpe Schemes (Construction) Company Limited,

Writ Petition No. 1385 of 2017
Decided on January 5, 2018
Citation: 2018 SCC OnLine Bom 15 : (2018) 2 AIR Bom R 91

The Judgment of the Court was delivered by Shalini Phansalkar-Joshi, J.:— Rule. Rule is made returnable forthwith. Heard finally, at the stage of admission itself, by consent of Mr. Patil, learned counsel for the Petitioner, and Mr. Kulkarni, learned counsel for the Respondents.

2. By this Petition, filed under Article 227 of the Constitution of India, the Petitioner is challenging the order dated 16th August 2016 passed by the 2nd Joint Civil Judge, Junior Division, Kolhapur, below Exhibit-33 in Special Civil Suit No. 125 of 2013.

3. The application Exhibit-33 was filed by Respondent No. 1-Plaintiff seeking permission to lead secondary evidence in respect of about 20 letters produced along with the list at Exhibit-32. According to Respondent No. 1, those letters were sent to the Petitioner demanding the payment of the consideration amount from time to time. It was stated that, the original letters are in possession of the Petitioner and, therefore, earlier, the application was filed under Section 66 of the Evidence Act, giving notice to the Petitioner to produce those letters. However, Petitioner, in reply to the said application, stated that, those letters are not in his custody or possession. Hence, Respondent No. 1 filed this application at “Exhibit-33” for allowing it to produce the secondary evidence under Section 65(a) of the Evidence Act.

4. The Petitioner has opposed the said application contending, inter alia, that, the said application is not maintainable, as Respondent No. 1 has to first establish that the original letters are existing and they were sent to the Petitioner, so that one can hold that they are in the possession of the Petitioner. Further it is submitted that, the Petitioner has categorically stated that, those documents are not in his possession and, accordingly, the Trial Court has also passed an order to that effect below “Exhibit-39”. In view thereof, it was submitted that, as the necessary foundation for leading of secondary evidence is not established, the application needs to be rejected.

5. The Trial Court, however, after hearing learned counsel for both the parties and after relying on the provisions of Sections 63(2) and 65(a) of the Evidence Act, was pleased to allow the application. Being aggrieved thereby, this Writ Petition is preferred.

6. In view of the submission advanced by learned counsel for the Petitioner that there was nothing on record to show that Respondent No. 1 has issued these letters from time to time, at the time of hearing of this Writ Petition on the last date, this Court has adjourned the matter, in order to enable learned counsel for the Respondents to take instructions whether the letters sent by Respondent No. 1 to the Petitioner are having any acknowledgment, if sent by hand delivery, or, postal stamp, if sent through the Post. Accordingly, today, the learned counsel for the Respondents has produced on record about 4 letters, which were issued to the Petitioner, along with the ‘Under Postal Certificate’. Out of those 4 letters, 2 letters, dated 8th January 2007 and 26th April 2007, clearly contain the demand of the balance consideration amount and they are also having the postal acknowledgment to show that they were sent by ‘Under Postal Certificate’.

7. Thus, at this stage, there is sufficient material to show that Respondent No. 1 has sent the letters demanding the balance consideration amount and they were sent by UPC. The original letters, in such situation, were required to be in possession of the Petitioner, to whom those letters were addressed. Now Petitioner has stated that, he is not in possession of those letters. In such situation, in view of Section 65(a) of the Evidence Act, the Trial Court was justified in granting permission to Respondent No. 1 to produce the secondary evidence. For ready reference, Section 65(a) of the Evidence Act can be reproduced as follows:—

“65. Cases in which secondary evidence relating to documents may be given – Secondary evidence may be given of the existence, condition or contents of a document in the following cases: (a) When 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, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it.”

8. Thus, as per this provision, when 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 and when, after notice mentioned in Section 66 of the Evidence Act, such person does not produce it, then, the secondary evidence can be permitted relating to those documents. Here in the case, such notice, under Section 66 of the Evidence Act, was given to the Petitioner, but the Petitioner came up with the case that, he is not in possession of the original letters. In such situation, Respondent No. 1 is entitled to produce the copies of those letters, which are in its possession. Accordingly, as sufficient foundation was laid, the Trial Court has rightly permitted Respondent No. 1 to lead the secondary evidence.

9. As regards the authority relied upon by learned counsel for the Petitioner in the case of H. Siddiqui (Dead) by LRs. v. A. Ramalingam, 2011 (2) ALL MR 938 (S.C.), it can be seen that, the said Judgment deals particularly with the proof of secondary evidence. It was held that, “mere admission of a document in evidence does not amount to its proof and the documentary evidence is required to be proved in accordance with law. The Court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon”. Here in the case, the Trial Court itself has specifically observed in paragraph No. 7 of its order that, “merely because Respondent No. 1-Plaintiff is permitted to lead secondary evidence regarding the letters claimed to be sent to the Defendants, it will automatically not proved that the letters were received by the Defendants and the burden lies on the Plaintiff to establish its case and the Defendant will get opportunity to cross-examine the witness of the Plaintiff on this aspect”.

10. Therefore, this Judgment cannot be of any help to the Petitioner, as in this case, by the impugned order, only the production of secondary evidence is allowed. Whether those documents are to be exhibited or admitted in evidence, that issue is kept open by the Trial Court also and it will be decided in the course of the trial.

11. Similarly, as regards the second Judgment relied upon by the learned counsel for the Petitioner in the case of Ashok Dulichand v. Madahavlal Dube, (1975) 4 SCC 664, it can be seen that, it specifically deals with Section 65(a) of the Evidence Act and lays down that, “secondary evidence may be given of the existence, condition or contents of a document when 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, or of any person out of reach of, or not subject to, the process of the Court, of of any person legally bound to produce it and when after the notice mentioned in Section 66, such person does not produce it”.

12. Here in the case, Respondent No. 1 has categorically averred and his averments find substance from the documents, like, ‘Under Postal Certificate’ and copies of the letters produced on record to show that the original letters were sent to the Petitioner. As the Petitioner is stating that he is not in possession thereof, then, naturally, Respondent No. 1 gets the right to produce the secondary evidence.

13. Therefore, in the present case, as the necessary foundation for production of the secondary evidence is laid down, the Trial Court has rightly allowed the application of Respondent No. 1 for production of the secondary evidence. As regards exhibiting those documents and admitting them in evidence, those issues are specifically left open by the Trial Court and by this Court also, to be decided at its appropriate stage.

14. The Petition is, accordingly, dismissed.

15. Rule is discharged.

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