Sarwan Singh vs Davinder Singh and another

D.V. Sehgal, J.—The petitioner is aggrieved against the order dated 31.7.1986 passed by the learned Sub Judge 1st Class, Moga, by

which his request to produce and prove on the record the relevant receipts in the gate pass book in its defence has been dissallowed.

The facts in brief are that the respondent filed a suit against the petitioner for recovery of Rs. 29000/- on the ground that goods of the said value

belonging to the respondent had not been returned by the petitioner from its cold storage. It is not in dispute that previously a criminal case was

instituted by the respondent against the petitioner on the ground of mis-appropriation of the goods but the petitioner was acquitted. In the course of

proceedings in the Criminal case the respondent as also the petitioner had produced receipts issued from the gate pass book and counter foil of the

gate pass book in support of their respective stands.

When the respondent led his evidence as a plaintiff he got produced and proved on the record some of the gate passes by virtue of which the

goods other than those which he complains have been withheld by the petitioner were allegedly returned to him. At that stage the petitioner had

raised objections against the production of those documents on the ground that those have neither been relied on in the list of reliance filed by the

respondent nor had been attached with the plaint. This objection was overruled by the learned trial Court on the ground that these gate passes had

already been produced in the criminal litigation and formed part of the judicial file of the criminal case. Therefore, the same were allowed to be

produced and proved on the record. However, when the gate pass book containing receipts, which according to the petitioner are duly signed by

the respondent, and would have shown that the goods in dispute had also been returned to the respondent was sought to be adduced in evidence

by the petitioner it has not been allowed to produce and prove the same on the record on the ground, firstly, that these were not produced in Court

before the settlement of issues as required by the provisions of Order 13 Rule 1 of the CPC (for short the Code) and, secondly, that these counter

foils are in the form of secondary, evidence. Since the respondent has not been asked in the first instance to produce the original of the same,

which according to the petitioner must be in his possession, these carbon copies cannot be produced as secondary evidence u/s 66 of the

Evidence Act, 1872 (for short the Act).

I have heard the learned counsel for the parties. I am of the considered view that the learned trial Court has irregularly exercised its jurisdiction

by denying the opportunity to the petitioner to produce in its defence the carbon copies of the gate passes from the gate pass book which are

purportedly signed by the respondent. Order 13 Rule 1 of the Code no doubt lays down that the parties should produce documents which they

rely on and which are in their possession or power at or before the settlement of issues but these rules of procedure are hand maid of justice and

are not to be construed strictly oblivious of the facts obtaining in a particular case. It is not in dispute that the respondent as also the petitioner had

produced gate passes and carbon copies of the gate passes contained in the gate pass book respectively during the course of criminal trial and

those form part of the criminal case. The respondent in fact was allowed to produce the gate passes in support of his case from the criminal file

despite objection of the petitioner but when the turn of the petitioner came to establish his defence he has not been allowed to produce the carbon

copies of the gate passes contained in the gate pass book forming part of the same criminal case file. Justice has to be dispensed with even

handedly.

As regards the objection that the carbon copies of the gate passes contained in the gate pass book are in the form of secondary evidence and

cannot be adduced without complying with the provision of Section 66 of the Act, I have no hesitation to hold that the same has wrongly prevailed

with the learned trial Court. The carbon copies of the gate passes appear to have been prepared at one and the same time. These also purport to

contain the signatures of the respondent. These are, therefore, counter parts of the original documents and in the nature of primary evidence and

not secondary one.

Consequently, I allow this revision petition with no order as to costs and set aside the impugned order of the learned trial Court. The parties,

through their counsel are directed to appear before the learned trial Court on 26.9.1988 when it shall proceed with the case further in accordance

with law.