VED PARKASH Vs. HARI PARKASH AND ORS.

JUDGEMENT

(1.) THE plaintiffs/respondents/non -applicants herein have instituted a Civil Suit before the learned trial Court for quashing and setting aside the order of mutation recorded/attested on the strength of a purported family settlement deed of 18.3.1999 arrived at inter -se the parties at contest, as also their predecessor -in -interest. Preceding to adduction of evidence on the material issue, on which onus was cast upon the defendant/applicant/petitioner herein, an application was instituted at the instance of defendant/applicant/petitioner herein under Section 65 of the Indian Evidence Act, for the according of permission to adduce into evidence, photocopy of settlement deed of 18.3.1999 by way of secondary mode, in substitution to its original. The reasons meted out in the application are encompassed in paragraph 4 of the application, whose contents stand extracted hereinafter: - -

(2.) THE respondents/plaintiffs in their reply had launched a vigorous contest to the application being allowed. Their contest was anvilled on an emanation in the cross -examination of the defendant/applicant of none being present at the time of the recording of attestation of mutation on the strength of the aforesaid settlement deed. Given the portrayal in the recitals in the order attesting mutation qua the defendant being present at the apposite stage, hence it is espoused that the possession of the original settlement deed remained with him. As a corollary, it is canvassed that it is now not open to the defendants/petitioners herein to contend before this Court that the copy of purported settlement deed ever remained in the possession of the plaintiffs/non -applicants, besides to contend that the possession of the original settlement deed of 18.3.1999 was ever gained or taken by the plaintiffs/non -applicants.

(3.) UNCONTROVERTEDLY , Mani Ram, the original plaintiff was, at the stage of institution of the Civil Suit, a party thereto, yet he died prior to the filing of the application at hand. Even though, the learned counsel for the defendant/applicant has pressed into service and has concerted to draw leverage from the provisions of Section 65(a) of the Indian Evidence Act, which stand extracted hereinafter to contend that it was not incumbent upon the defendant/applicant to prove the factum of its loss or destruction nor hence the reasons as culled out by the learned trial Court in its impugned order for dismissing the application of the defendant -applicant acquire any legal force, especially when there is a pointed averment in the apposite paragraph of the application at hand qua possession of the original of the settlement deed having been delivered to deceased Mani Ram. He has besides contended that even the contemplated condition, in Section 65(a) qua according of permission to adduce into evidence by way of secondary mode a photocopy of the settlement deed in replacement of its original, in as much, as preceding such according of permission, the defendant/applicant being enjoined to serve a notice upon the person in whose possession it is and his despite his having been served upon a notice by the applicant/defendant to produce it omits to produce it, hence facilitating affording of permission by the Court concerned to adduce photocopy thereof by way of secondary mode, also stands waned, in view of proviso (2) of Section 66 of the Indian Evidence Act which mandates that given the nature of the case, the adverse party is presumed to have knowledge that he would be required to produce it. As a corollary when with a palpable manifestation in the application at hand of the deceased Mani Ram being in possession of the original of the settlement deed, obviously he is presumed to be in the know of the fact that he would be required to produce it, as such, even the serving upon him a notice to produce it, as a pre -requisite to pave way for the application of Section 65(a) of the Indian Evidence Act, was not imperative. Even the acceptance of the above contention of the learned counsel for the defendant/applicant would not facilitate the according of permission to him to adduce into evidence a photocopy of the original settlement deed by way of secondary mode, for the reason that the person in whose averred possession the original is being no longer alive at the time of institution of the application at hand. In face of his demise, neither any notice to produce the original could be served upon him nor in case he omitted to produce it after his having been served with a notice to produce it as contemplated in Section 65(a) of the Indian Evidence Act, the necessary permission to the defendant/applicant to adduce into evidence a photocopy of the original by way of secondary mode, was hence affordable, nor also, clause (2) of Section 66 envisaging as a pre condition to its invocation the knowledge of the adverse party qua the necessity of its production, hence relieving the defendant/applicant to serve upon him a notice to produce it as envisaged in clause (a) of Section 65 of the Indian Evidence Act, can obviously be of no avail to the defendant/applicant, as the presumption as enshrined in clause (2) of Section 66 of Indian Evidence Act, hence relieving the rigor of clause (a) of section 65 besides of the substantive part of section 66 of Indian Evidence Act is both arouse -able as well as invokable, only in the event of the party in possession of the original document being alive at the time of institution of the application at hand. However, given the factum that Mani Ram in whose averred possession the original of the purported settlement deed was, being dead at the time of institution of the application, consequently, neither in terms of clause (a) of Section 65 of Act, any notice could be served upon him to produce it, besides on his omission to produce it despite notice, no permission to adduce into evidence photocopy of the original by way of secondary mode was affordable nor also clause (2) of Section 66 of the Indian Evidence Act in relaxation of the rigor of substantive provisions of section 66 of the Indian Evidence Act gives any succor to the defendant/applicant to contend with any force or vigour before this Court especially when the person pointedly averred to be in possession of the original, at the time of institution of the application at hand was dead, hence was in the know of the fact that he would be required to produce it. Reiteratedly, the factum of the demise of Mani Ram at the time of institution of the application at hand deprives the defendant/applicant to canvass with any empowerment before this Court that either clause (a) to Section 65 of the Indian evidence Act or clause (2) of Section 66 of the Indian Evidence Act are invokable at his instance. Consequently, the reasons as prevailed upon the learned trial Court in dismissing the application are embedded in the factum of the inability of the defendant -applicant to prove the loss or destruction of the original cannot stand displacement.