MOHANLAL SAH Vs. SAMAL RAM POTDAR

JUDGEMENT

(1.) The plaintiffs, who are appellants, brought a suit for recovery of a mortgage debt on the basis of a mortgage deed executed by one Motilal, now dead, on the 25th April, 1951, for Rs. 2500/- in favour of the plaintiffs. The plaintiffs filed a certified copy of the mortgage deed, which has been marked as Ext. 2 (a) on the allegation that the original document was given to the pleader's clerk to get the plaint drafted for filing the suit This was in March, 1952. On April, 11, 1952, the house of the pleader's clerk got fire, and the document in question along with many other papers were destroyed in that fire. The present suit was filed in 1954. Several pleas were raised in defence, but it is not necessary to refer to them here, as the findings on most of them are in favour of the plaintiffs-appellants.

(2.) Both the courts below have found that the loss of the original document has not been, proved by the plaintiffs. Nothing has been pointed out here to show that this finding is incorrect. The certified copy could not have been admitted as secondary evidence, unless the loss of the original document was established. Therefore, the basis of the plaintiff's suit is failing them.

(3.) It is contended by the learned counsel for the respondent that even the certified copy, namely Ext. 2(a) is not secondary evidence far from its being admissible as such. Reference was made to Section 63, illustration (c) of the Evidence Act. There appears to be no evidence to show the comparison of this certified copy with the original by any competent person or agency. It is not necessary to decide here whether Ext. 2 (a) can be a secondary evidence, although the certified copies of documents engrossed in the registers in the Registration Office, maintained according to the provisions of the Registration Act, have been held, in some cases, to be secondary evidence. Whether such evidence is admissible or not will have to be determined upon the finding about the loss of the original. In the present case, the loss of the original mortgage deed has not been proved by the plaintiffs and therefore, they are not entitled to tender the certified copy as the basis of their suit as secondary evidence under Section 65 (c) of the Evidence Act. The result is that this appeal fails and is dismissed with costs.