MOHINDER KUMAR GOEL Vs. KUSUM KAPOOR

JUDGEMENT

(1.) THE petitioners are aggrieved by the orders rendered on 19.12.2013 by the learned Civil Judge (Sr. Division), Mandi, on an application preferred by the plaintiffs under Section 65 of the Indian Evidence Act, read with Section 151 of the CPC for leading secondary evidence i.e. the typed copy of the Judgment purportedly rendered by the learned Sub Judge IInd Class, Mandi in Civil Suit No. 5 decided on 32.4.1998 BK.

(2.) THE learned trial Court while being seized of the application concluded that its adduction was just and essential to decide the controversy inter -se the parties at contest. The contest inter -se the parties at lis is qua the ownership of Khasra No. 421. The plaintiffs concerted to establish their ownership qua the aforesaid khasra numbers by moving the instant application for adduction into evidence the typed copy of the judgment purportedly rendered in Civil Suit No. 5. The learned trial Court while allowing the application had relied upon report Ext. PW -3/A of the copying agency divulging the fact that it was not traceable hence its certified copy being not suppliable. On strength thereof, it appears that the learned trial Court concluded that since as such it was lost or destroyed, hence, a mere uncertified copy was sufficient to be adduced into evidence.

(3.) TRUE it is that any document is to be proved by adduction into evidence of its original. True it is also that when the original has been lost or destroyed it is permissible as well as open for any party to prove its case by relying upon a certified copy thereof. However, adduction into evidence a certified copy of the original is permissible only in the event of loss or destruction of the original being sufficiently established. However, the typed copy which has been proposed to be adduced into evidence by the plaintiffs to prove its case qua the disputed Khasra number is an uncertified typed copy of the judgment rendered by the learned Sub Judge, Mandi in Civil Suit No. 5. Merely on the strength of the report of the copying agency divulged in Ext. PW -3/A though disclosing the factum of the case file being not traceable, hence no concomitant conclusion of its being lost or destroyed was formable as untenably done. Nonetheless, at the stage of adjudication of the application it was also incumbent upon the learned trial Court to look into any other evidence portraying the fact that as a matter of fact the record of adjudication in the civil suit of which adjudication an uncertified copy/typed copy has been proposed to be adduced ever existed, connoted by an entry in the apposite register. Proof of existence of the original record was a pre -requisite to determine, hence, its loss or destruction. However, no such apposite register depicting therein the factum of an entry of the civil suit in which the judgment had been purportedly pronounced and is being relied upon by the learned counsel for the plaintiffs was ever placed before the learned trial Court. In the absence of adduction of the apposite register and its adduction displaying the factum of the Civil Suit in which the purported judgment was pronounced being recorded/entered therein, the pre requisite condition of its existence stood not proved, as such, no conclusion of either the civil suit having been ever instituted nor also concomitantly the conclusion that its record was either lost or destroyed could be marshaled. Consequently, for reiteration even if the record of the original civil suit was lost or destroyed, proof of institution thereof and concomitantly of adjudication therein was required to be adduced comprised in its having been entered in or recorded in the apposite register, besides when accompanied by an admission of the parties that such a judgment was previously rendered, would have surged forth a facilitation for the learned trial Court to proceed to allow the application preferred before it by the plaintiffs inasmuch, as, proof having been then lent not only qua its loss or destruction but also qua its being both admissible in evidence as also relevant. When the typed copy of the judgment has neither emanated from the copying agency nor when an entry of institution of the civil suit in the apposite register exists. As a sequel, when it did not come to be instituted, hence, when it obviously did not exist no conclusion of its being lost or destroyed can come to be formed nor hence it is adducible in evidence. In aftermath, the learned trial Court has committed a grave illegality or impropriety in allowing the application. Though the learned counsel for the defendants contends on the score of the judgment rendered in Marwari Kumar and others vs. Bhagwanpuri Guru Ganeshpuri and another : AIR 2000 SC 2629, wherein it has been mandated that in the event of the contesting parties having admitted the factum of a previous adjudication having culminated in the rendition of a judgment, a mere typed copy thereof was sufficiently admissible for adduction into evidence, is inapplicable to the facts of the case at hand. The reason is that in the cited case the parties at lis had admitted the factum of theirs being a previous litigation inter -se the parties at lis. However, when in the instant case when the parties at contest are disputing the rendition of the purported judgment therein besides when they contest the factum of their being any previous litigation inter -se them, renders it inapplicable. Consequently, the said submission made by the Shri K.D. Sood, learned senior counsel for the respondents is rejected. The petition is allowed. Impugned order is set -aside. Records be sent back. No costs.