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Judgment
Dharam Chand Chaudhary, J.—Both these petitions arising out of order dated 14.8.2012 passed by learned Civil Judge (Junior Division), Kandaghat, District Solan in an application registered as CMP No. 81-K/6 of 2012 u/s 65 of the Indian Evidence Act (hereinafter referred to as "the Act"), are proposed to be disposed of by this common judgment. The complaint is that learned lower Court while allowing the application partly has acted beyond its authority and the jurisdiction vested in it, as according to the petitioner (defendant No. 1 in the trial Court), the respondent No. 1 (plaintiff in the trial Court) has miserably failed to establish that the primary of photo copy of discharge slip sought to be proved by leading secondary evidence was in existence, however, the same being destroyed, she is not in a position to produce the same. The Court below thus should have not granted the permission as sought to prove of the discharge slip which as a matter of fact is a photo copy and not certified or attested, by leading secondary evidence. This part of the impugned order being beyond the authority vested in the lower Court and also without any jurisdiction vested in it has been sought to be quashed. Whereas, in the connected petition, respondent No. 1 (plaintiff-petitioner before the trial Court) aggrieved from not allowing her to produce in evidence the original ticket for out door patient qua her own treatment, has assailed the legality and validity thereof on the ground, inter alia, that being original not available and despite abundant caution, she failed to produce the same in evidence at an appropriate stage, the same should have been allowed to be proved by way of leading secondary evidence.
Having gone through the record and also taking into consideration the rival contentions, at the outset it is deemed appropriate to deal with the question of maintainability of this petition raised by Mr. J.L. Bhardwaj, learned counsel representing the respondent-plaintiff.
True it is that as per the settled legal principles where against an order a statutory right to file appeal is available, a petition under Article 227 of the Constitution of India is not maintainable. Also that even if the statute does not provide for remedy of appeal, a party aggrieved from any order passed by a subordinate Court may prefer a revision petition u/s 115 of the CPC against such order in the High Court. A reference in this behalf can be made to the judgment of Supreme Court in Sadhana Lodh Vs. National Insurance Company Ltd. and Another,
A co-ordinate Bench of this Court in Jai Chand Thakur Vs. Sat Pal Chauhan and Another, after taking into consideration the law laid down by the apex Court has also held as under:-
The basic principle laid down is that the Tribunal and Courts subordinate to the High Court must act "within bounds of their authority" and as long as they act within the bounds of their authority, this Court in exercise of its jurisdiction under Article 227 would normally not interfere. The Apex Court has also laid down that this court is not expected to correct errors of law or fact just because another view is possible.
On the other hand this authority itself lays down that on the proper appreciation of Article 227 it is apparent that one of the main object of this article is to keep strict administrative and judicial control on the administration of justice and must ensure that the fountain of justice remains pure and unpolluted. It is in the light of these principles laid down by the Apex Court that the facts of this case will now have to be gone into.
Against the order impugned before this Court in the present petition and also in the connected one, no statutory remedy of appeal is available.
If coming to the jurisdiction vested in this Court u/s 115 of the Code of Civil Procedure, a revision petition can only be preferred against an order which finally dispose of the proceedings before the Court. As a matter of fact, the impugned order neither has disposed of the suit finally nor any other proceedings and rather thereby while allowing the application partly, the respondent-plaintiff has been permitted to produce the photo copy of the discharge slip. Therefore, the maintainability of revision petition u/s 115 of the CPC is also doubtful. On the other hand, Article 227 of the Constitution of India casts a duty on the High Court to appreciate a given situation properly and for strict administrative and judicial control over the Tribunals and Courts subordinate to it, must exercise the jurisdiction so vested in it.
Since the respondent-plaintiff herself (petitioner in the connected petition) has also approached this Court under Article 227 of the Constitution of India for quashing of that part of the impugned order whereby she has not been permitted to prove her own prescription slip by way of leading secondary evidence, therefore, the objection qua jurisdiction seems to have been raised merely for rejection.
Now, if coming to the real point in controversy that the Court below has acted beyond its authority and did not exercise the jurisdiction vested in it legally while passing the impugned order, it is desirable to take note of clause (c) of Section 65 of the Act, applicable to this case, which reads as follows:-
(c) When the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time.
The question for determination in this petition is as to whether the respondent-plaintiff has rightly been granted permission to prove the discharge slip of late Shri Bhagwan Singh, the predecessor-in-interest of the parties to the suit by producing the secondary evidence and the permission to produce her own out door patient ticket, has erroneously been declined.
The permission to prove a document by way of secondary evidence can be granted in either of the situation covered under clause (a) to (g) of Section 65 of the Act. The permission sought in the case in hand is covered under clause (c) of Section 65 of the Act for the reason that the respondent-plaintiff allegedly came across the photo copy of discharge slip of her father late Shri Bhagwan Singh during the search of her record in old residential house and as she failed in her attempt to trace out the original discharge slip and satisfied of the same being lost, sought permission to prove the photo copy thereof by leading secondary evidence.
The apex Court in The Roman Catholic Mission Vs. State of Madras and Another, has held that the existence of original of a document sought to be produced by way of secondary evidence must be established on record and it is only thereafter permission to produce such a document by leading secondary evidence can be granted.
In Gafarsab @ Sati Gafar Sab Vs. Ameer Ahamed, it is held as under:-
----. It is clear as a rule, documents must be proved by primary evidence. If the primary evidence is not available for the reasons set out in S. 65 of the Act only then secondary evidence is admissible. Therefore, before secondary evidence is adduced, a proper foundation is to be laid for not producing the primary evidence. Only after the non-production of the primary evidence is satisfactorily accounted for, the secondary evidence would be permitted to be adduced.
The apex Court in U. Sree Vs. U. Srinivas, has laid down the law on this issue, which reads as follows:
Recently, in H. Siddiqui v. A. Ramalingam, while dealing with Section 65 of the Evidence Act, this Court opined that though the said provision permits the parties to adduce secondary evidence, yet such a course is subject to a large number of limitations.
12...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.
It has been further held that mere admission of a document in evidence does not amount to its proof. Therefore, it is the obligation of the court to decide the question of admissibility of a document in secondary evidence before making endorsement thereon.
In the case at hand, the learned Family Judge has really not discussed anything relating to foundational evidence. The High Court has only mentioned that when the letter was summoned and there was a denial, the secondary evidence is admissible. In our considered opinion, such a view is neither legally sound nor in consonance with the pronouncements of this Court and, accordingly, we have no hesitation in dislodging the finding on that score.
It is in the light of the legal position discussed hereinabove, the facts of this case will now have to be gone into.
The dispute, inter se, between the parties, who are none else, but the legal heirs of deceased Bhagwan Singh of whom the petitioner-defendant No. 1 is widow, whereas, respondent-plaintiff, daughter. As per the plea set up by the plaintiff said Shri Bhagwan Singh died intestate, whereas, as per that of his widow-defendant No. 1, he allegedly executed a ''will'' during his life time on 14.12.1978. The ''will'' is under challenge in the main suit, which presently is at the stage of final hearing, however, the proceedings therein held up on account of filing of the application u/s 65 of the Act in the trial Court and subsequently these petitions in this Court. The discharge slip permitted to be produced by leading secondary evidence is neither attested nor certified copy and rather is a photo copy, the original whereof has not been produced being lost. One can understand that the original of this slip might have lost, however, in order to bring her case within the ambit of Section 65 of the Act, the plaintiff-respondent could have made efforts to find out from the medical college and Snowdon Hospital, Shimla whether the original thereof is available or not and to place on record sufficient proof to show that the original record of the discharge slip in question still exists. Mere assertions that she tried to trace out the original thereof, is not sufficient to discharge the onus upon her to show that the original record of the discharge slip is still in existence. Even the photo copy is neither attested nor certified, hence, not admissible in evidence. No useful purpose is likely to be served by granting permission to prove the same by adducing secondary evidence for the reason that there is no proof that the primary thereof, i.e. original discharge slip is still available in Snowdon Hospital. As a matter of fact, the factum of the missing of this slip and on account of that the same could not be placed on record of the suit at an appropriate stage, is also not proved in accordance with law. The efforts to trace out the original of this document in the hospital should have been made, but nothing to this effect has come on record. Be it may that in the hospital also, the original record would have been destroyed, however, in that event, some material suggesting that the same stands destroyed as per orders of the competent authority, should have been brought on record to prove so. This Court is thus of the considered opinion that the Court below has acted without any authority and jurisdiction vested in it while allowing the respondent-plaintiff to prove the discharge slip by way of producing secondary evidence. This Court is thus not in agreement with the findings to the contrary recorded by the lower Court, which as a matter of fact, deserve to be quashed.
The further claim of the plaintiff-respondent to prove her own prescription slip by way of leading secondary evidence is without any substance for the reason that the scheme envisaged u/s 65 of the Act only provides for proof of a primary document in existence, the original where of is lost. When the original prescription slip is available, the remedy to produce the same at a later stage is provided somewhere else in the CPC and not u/s 65 of the Act. She thus should have resorted to the remedy so available to her and not approached u/s 65 of the Act, which remedy in a situation when original document is available, certainly is not available to her. This part of the impugned order, therefore, neither suffers from any illegality nor any irregularity nor can it be said to be without any jurisdiction. The result of the discussion hereinabove would thus be that the petition filed by defendant-petitioner, i.e. CMPMO No. 287 of 2012 succeeds and the same is allowed. The impugned order dated 14.8.2012 passed in civil suit No. 11-K/1 of 2005 allowing the application to prove the discharge slip of late Shri Bhagwan Singh by leading secondary evidence, is quashed and set aside and the petition filed by petitioner-plaintiff, i.e. CMPMO No. 311 of 2012 fails and the same is dismissed. The parties through learned counsel representing them are directed to appear before the trial Court on 15th May, 2013. Trial Court record be sent back forthwith. Pending applications, if any, shall also stand disposed of.