AMRIK SINGH Vs. SURJEET KAUR

JUDGEMENT

(1.) THE revision is against the order of rejection of plea for letting in secondary evidence. The contention of the counsel for the petitioner is that the original had been lost and he was therefore tendering secondary evidence. The Court had rejected it on the ground that the Will was said to have been executed in the year 1981 and the attempt of the petitioner to register the document was made 26 years later. He also observed that there was no reference to the loss of the original in the written statement. There was no justification for production of secondary evidence. The entire law has been wrongly understood by the trial Court. All that Section 65 of the Evidence Act sets out are the circumstances when secondary evidence can be received. Loss of the original is one of the circumstances for production of secondary evidence. Whether all or any of the circumstances existed for production of secondary evidence is essentially a matter of evidence and not a rule of essential pleading. Whether the document was lost or not can only be spoken to by a party and the correctness of the version made is to be tested in the cross examination. The fact that the party who was giving the evidence of its loss had not referred to it in its pleading will be a matter for cross examination and cannot make possible an inference that the original could not have been lost. It is required to be established at a trial or at the cross examination and cannot be pre judged by a judicial officer by an observation in the manner done in the impugned order. If there was delayed production of the Will or the improbability of a party who has given the Will to Revenue Authority or even that the copy produced did not contain signature, they will have a bearing to test the genuineness of the document. The decision of genuineness of a document could be done only when the document is brought on record. The Court cannot render a finding in vacuum. It has to be inevitably done after bringing on record and a finding given that the document produced is either true or not.

(2.) LEARNED counsel for the respondent relies on a judgment of the Supreme Court in H. Siddiqui (D) by L.Rs. v. A. Ramalingam, : 2011 (4) S.C.C. 240 where the Court had merely reproduced the requirement of law under Section 65 that bring on a document by leading secondary evidence is possible only if the non -production of the original was accounted for. The Court was dealing with the situation of making a statement that mere admission of a document in evidence does not amount to its proof. This itself will be untenability of the respondent's contentions. The Supreme Court has laid down that a mere admission of a document in evidence will not amount to its proof, what is precisely the issue in this case. The production of the document by a defendant if it is admitted into evidence cannot mean that the document has been proved. It is upon a judicial adjudication that it will be revealed whether the admitted documents had been proved or not. That depends on the quality of evidence that is let in. The observation of the Supreme Court must itself be understood as a document which is brought for evidence on his contention that the original is missing will be admitted for evidence but will not be taken as proof of every document or proof of its loss. That is still dependent on further examination that is brought at the trial. If an argument were to be that a person who tenders a document must prove aliunde that there was such a loss and gives evidence it will unnecessarily hamper the course of trial and require two steps of evidence. i) At the stage of letting in parties to show what documents are available and what circumstances have been established for production of secondary evidence. If the Court renders an adjudication there is still a scope in higher forum as is done in this case. Even a rejection of the Will at the threshold on the ground that only secondary evidence is produced is possible only in circumstances where none of the grounds as mentioned in Section 65 is set forth by a party. The fact that production of the document admission of the same and assigning an exhibit number, does not amount to proof as laid down by the Supreme Court in the above case. All is not lost for the plaintiff. He has still all the opportunities to show that the defendant's contention was not correct and secondary evidence could not have been tendered. This Court has had an occasion to deal with it for the very same point and there are at least three decisions of this Court which outline the procedure that has to be adopted by the trial Court. The decision in S.P. Arora v. Satbir Singh,, 2010 (5) R.C.R. 350, Simarpal Singh v. Hakam Singh, : (2009 -2) 154 P.L.R. 562 and Atma Nand (Deceased) through L.Rs. v. Ram Sarup (Deceased) through his L.Rs., (2012 -1) 165 P.L.R. 440. The trial Court shall apprise itself of the statement of law through this Court and the Supreme Court in proper perspective and allow for a seamless flow of trial without hampering itself, the manner it has done in this case.