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Judgment
Inspite of service upon the respondent and the pendency of the case since 12.12.2012, no one has put in appearance on behalf of the respondent, even in the second round.
This writ petition under Articles 226 and 227 of the Constitution of India has been preferred claiming the following reliefs:
“A] The order impugned dated 06.11.2012 (Annex.7) passed by the learned District Judge, Dungarpur may kindly be quashed and set aside.
B] The application filed by the petitioner under Section 65 of the Indian Evidence Act may kindly be allowed as prayed.
C] Any other appropriate order or direction, which this Hon’ble Court deems fit and proper may kindly be passed in favour of the petitioner.
D] Cost of the writ petition may kindly be awarded in favour of the petitioner.”
The plaintiff/petitioner filed a money recovery suit in respect of an amount of Rs.1,65,000/- on 10.04.1996. The respondents pleaded no instructions, and thus, ex parte proceedings resulted into the petitioner exhibiting fourteen documents.
The suit was decreed in favour of the petitioner vide order dated 24.05.1997. Thereafter, the application moved by the respondents under Order 9 Rule 13 CPC was again dismissed on account of no instructions on 06.10.2001. But the respondents again moved another application under Order 9 Rule 13 CPC in the year 2011, which was allowed on 11.04.2012.
The petitioner sought the fourteen documents, which were given in original to the learned trial court on the ground that she did not get it back from the learned court, as the suit was already decreed in her favour.
The learned trial court sought information from the concerned office and considered the application of the plaintiff/petitioner seeking permission to adduce the secondary evidence relating to her suit on the ground that the originals of the documents, she wishes to use, have been weeded out while lying in the court’s record room.
The learned court below, in its order dated 06.11.2012, has reported the following fact:-
“(4) A report from this court’s office to the effect that the part ‘C’ which contains documents has been weeded out is on record. It is not clear whether plaintiff applied for return of documents after judgment and obtained them or not but part ‘C’ having been weeded out it can be presumed that the documents have either been destroyed or can not be traced. The plaintiff is therefore, entitled to adduce secondary evidence.”
Thus, learned counsel for the petitioner pointed out that the court itself has weeded out the documents, and since the documents have been destroyed or cannot be traced, therefore, the plaintiff/petitioner was entitled to adduce the secondary evidence.
The learned court below has dismissed the application for adducing the secondary evidence filed by the plaintiff/petitioner on the ground that sub-section (3) of Section 63 of the Indian Evidence Act requires the copies to have been made from or compared with the original, and since the same was not supported in the aforementioned manner, therefore, the secondary evidence cannot be admissible.
Learned counsel for the plaintiff/petitioner has further submitted that the evidence in question comes within the purview of sub-section (2) of Section 63 of the Indian Evidence Act, which provides that copies made from the original by mechanical processes ensure the accuracy of the copies compared with other copies.
Learned counsel for the petitioner relied upon the precedent law laid down by the Hon’ble Apex Court in J. Yashoda Vs. K. Shobha Rani, reported in (2007) 5 SCC 730, whereby the Hon’ble Apex Court has declared that the definition of “secondary evidence” in Section 63 is exhaustive as the section declares that secondary evidence “means and includes”, and then follow the five kinds of secondary evidence.
The Hon’ble Apex Court, in the said case, further laid down that the rule, which is the most universal, namely, that the best evidence the nature of the case will admit shall be produced only means that, so long as the higher or superior evidence is within the possession of a person or may be reached by a person, that person shall give no inferior proof in relation to it. Essentially, secondary evidence is evidence which may be given in the absence of that better evidence, which law requires to be given first, when a proper explanation of its absence is given.
After hearing learned counsel for the petitioner as well as perusing the complete record of the case, alongwith the precedent law cited by learned counsel for the petitioner, this Court is of the opinion that the plaintiff/petitioner was a bona fide litigant, who had preferred the suit on 10.04.1996 for recovery of certain amount. The said suit was decreed ex parte in her favour on 24.05.1997, and reopened only on 11.04.2012, and therefore, the plaintiff/petitioner was under a bona fide belief that there was a decree existing in her favour from 24.05.1997 to 11.04.2012.
This Court also takes note of the fact that in the office report of the learned court below, as mentioned in para 4 of the impugned order dated 06.11.2012 and reproduced hereinabove, the office had reported that the documents concerned, which were already on record as submitted by the plaintiff/petitioner, have been weeded out, and therefore, the plaintiff/petitioner was entitled to adduce secondary evidence.
In light of the peculiar circumstances of the case, this Court finds that the plaintiff/petitioner cannot be penalized for the inaction and callousness on the part of the respondent and the office of the learned court below, which lost the documents, that the plaintiff/petitioner had appropriately produced initially at the time of rendering her evidence.
Moreover, Section 65(c) of the Indian Evidence Act clearly makes a way for the documents to be taken on record as secondary evidence, when the original has been destroyed or lost, for no default or negligence on the part of the party concerned.
Thus, in light of the aforesaid observations, the present writ petition is allowed and the impugned order dated 06.11.2012 (Annex.7) passed by the learned District Judge, Dungarpur is quashed and set aside and the application filed by the petitioner under Section 65 of the Indian Evidence Act is allowed. The learned court below is directed to take the documents in question on record and proceed strictly in accordance with law.