Milestone Trade Links vs Yamuna Industries Ltd & Ors

Manmohan, J

I.A. 2883/2017

Present application has been filed under Order 11 Rule 4 of the Commercial Courts, Commercial Division and Commercial Appellate Division of

High Courts, 2015 (for short “Act, 2015â€) read with Section 151 CPC seeking permission to file additional documents and for leading secondary

evidence under Section 65 of the Indian Evidence Act, 1872 (for short “Act, 1872â€​).

Learned Joint Registrar vide order dated 7th March, 2017 has held that no permission to lead secondary evidence under Section 65 of the Act, 1872

is required.

Learned counsel for the defendants submits that Order 11 Rule 4 of the Act, 2015 deals with admission and denial of documents and does not

empower this Court to take the documents on record at this belated stage.

He further submits that a Division Bench of this Court in D.D.A. and Ors. Vs. Ram Kaur and Ors., MANU/DE/1069/2017 has held that a party is

permitted to adduce secondary evidence subject to a number of limitations. The relevant portion of the judgment relied upon by learned counsel for the

defendants is reproduced hereinbelow:-

“48. Discussing Section 65 of the Indian Evidence Act, the Supreme Court in the case B.B. Ayesha vs. Bihar SSM Avaquaf

MANU/SC/0376/1968 : AIR 1969 SC 253, held that in Sections 65(a) to (c), any secondary evidence is admissible and in terms of Sections

65(e) and (f), only certified copies are admissible. From the provisions of Sections 62, 64 and 65, it is apparent that the contents of a

document can be proved either by the production of the document itself or by secondary evidence in the eventualities covered under

Clauses (a) to (g) of Section 65. The Court has in a recent judgment H. Siddiqui (dead) by LRs. versus A. Ramalingam MANU/SC/0174/2011

: (2011) 4 SCC 240 has discussed admissibility of Secondary Evidence and has held as under:

""The provisions of Section 65 of the 1872 Act provide for permitting the parties to adduce secondary evidence. However, such a course

is subject to a large number of limitations. In a case where the original documents are not produced at any time, nor has any factual

foundation been laid for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus,

secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for, so as to

bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence

that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof.

Therefore, 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. (vide Roman Catholic Mission v. State of Madras

MANU/SC/0253/1966 : AIR 1966 SC 1457, State of Rajasthan v. Khemraj, MANU/SC/0857/2000 : (2000) 9 SCC 241, LIC vs. Ram Pal

Singh Bisen, MANU/SC/0170/2010 : (2010) 4 SCC 491 and M. Chandra v. M. Thangamuthu, MANU/SC/0721/2010 : (2010) 9 SCC 712)

A Coordinate Bench of this Court in Prem Chandra Jain (Deceased) represented by Lr’s Shri Bharat Bhushan Jain, Advocates & Others Vs.

Sri Ram (Deceased) Represented By Lr’s Shri Sunil Kumar Arora & Others, 2009 (113) DRJ 617 has held that neither the Act, 1872 nor Code

of Civil Procedure requires filing of an application under Section 65 of the Act, 1872. However, needless to say, if the plaintiff wishes to lead

secondary evidence, it will have to follow the mandate of law as prescribed by the Division Bench in D.D.A. and Ors. Vs. Ram Kaur and Ors.

(supra)

Undoubtedly, plaintiff has filed the present application under a wrong provision of law. However, it is settled law that wrong nomenclature would

make no difference, provided the Court has the power to grant the relief.

Admittedly, in the present case, the Court has power under Order 11 Rule 1(5) Act, 2015 to take on record additional documents beyond the time

prescribed if reasonable cause is established.

This Court in view of the reasons disclosed in the present application, grants leave to the plaintiff to place on record the said documents.

Accordingly, present application is allowed and the documents are taken on record.

However, legality and validity of the said documents would have to be proved in accordance with Section 65 of the Act, 1872.

CS(COMM) 611/2016

Plaintiff is directed to file its evidence by way of affidavits within four weeks.

List the matter before the Joint Registrar for plaintiff’s evidence on 26th April, 2018.