1. Having lost in his endeavor to lead secondary evidence in respect of agreement dated 31st May, 2010, before the learned Court below, the petitioner/defendant has preferred the instant petition under Article 227 of the Constitution of India, against the order dated 01.11.2017, passed by the learned Civil Judge, (Senior Division), Court No. 1, Rohru, District Shimla, H.P. in Civil Suit No. 18-1 of 2012, whereby application preferred by the petitioner/defendant under Section 65 of the Indian Evidence Act, was dismissed.
2. The factual position emerging from record:-
2(i) Suit was filed by the respondent/plaintiff, seeking permanent prohibitory and mandatory injunction with respect to the land comprised in Khasra No. 1186, Khata No. 96 min Khatauni 254 and also from throwing malwa, mucc and debtries etc., over the land bearing Khasra No. 1178 comprised in K.K. No. 96 min/255 situated in revenue chak Dainwari Patwar circle Tikkri Tehsil Chirgaon Distt. Shimla, H.P. 2(ii) Written statement to the plaint was filed by the petitioner/defendant on 18.06.2012, wherein paragraph-2, it was mentioned that the petitioner/defendant had started construction of his house in the year 2010 and had given the house for construction on contractual basis to a contractor namely Sh. Karan Bahadur, for an amount of Rs. 2,55,000/-, for which purpose, an agreement was executed between the petitioner/defendant and the said contractor. Housewas stated to have been constructed over the suit land in the year 2010-2011.
2(iii). The record of learned Court below reveals that the evidence in the case commenced in the year 2014. The matter was fixed for defendant's evidence w.e.f. 22.11.2014 onwards. Application under Section 65 of the Indian Evidence Act on 10.7.2017 was moved by the petitioner/defendant for leading secondary evidence in respect of agreement dated 31.05.2010, alleged to have been executed, between him and one Sh. Karan Bahadur in respect of alleged construction of the house of the defendant. The professed reasons for moving the said application are that:-
i) It was at the time of recording evidence of defendant's witnesses that the petitioner/defendant came to know about there being only a photocopy of the agreement in the court file.
ii) The petitioner/defendant was under the impression that agreement, in original, was at his home.
iii) Since, the agreement could not be traced out by him and the same was necessary, therefore, this application under Section 65 of Indian Evidence Act was moved.
2(iv) The plaintiff opposed the application contending that the requirements laid down under Sections 63 & 65 of the Indian Evidence Act have not been met. The application having been dismissed by the learned Trial Court vide order dated 01.11.2017, present petition has been filed.
3. I have heard learned counsel for the parties and gone through the record.
4. Relying upon the judgments rendered by the Hon'ble Supreme Court in cases of J. Yashoda Vs. K. Shobha Rani, (2007) 5 Supreme Court Cases, 730, M.Chandra vs. M. Thangamuthu, (2010) 9 Supreme Court Cases 712, H. Siddiqui vs. A. Ramalingam (2011) 4 Supreme Court Cases 240 & U. Sree vs. U. Srinivas, (2013) 2 Supreme Court Cases 114, it can be concluded that secondary evidence in respect of an ordinary document can be allowed in case following requirements inter-alia amongst others are met :-
i) For leading secondary evidence, non production of the document in question has to be properly accounted for by giving cogent reasons inspiring confidence.
ii) The party should be genuinely unable to produce the original of the document and it should satisfy the Court that it has done whatever was required at its end. It cannot for any other reason, not arising from its own default or neglect produce it.
iii) Party has proved before the Court that document was not in his possession andcontrol, further that he has done, what could be done to procure the production of it. iv) The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original.
5. The record of the case clearly indicates that in the written statement, even the date of the agreement is not mentioned. The written statement was filed on 18.06.2012. The matter was fixed for defendant's witnesses w.e.f. 22.11.2014. The application for leading secondary evidence was moved on 10.07.2017, five years after the filing of written statement. The reason for delay advanced by the petitioner/defendant that he came to know about the existence of only photocopy of the agreement in the court file, at the time of examination of defendant's witnesses, does not inspire confidence. From 22.11.2014, the matter was fixed for defendant's witnesses. The record of learned Court below demonstrates that statements of DW No. 1, DW No.2,DWNo. 3 had already been recorded on 20.12.2016. There is no reason forthcoming in the application, which sufficiently and cogently explains the delay in moving the application.
6. The requirements laid down under Sections 63 and 65 of the Indian Evidence Act for permission to lead secondary evidence are not met in the instant case. There is no averment made in the application that the photocopy of the agreement on the record is made from the original, when it was made and who compared it. The loss of the original agreement has not been accounted for in accordance with the provisions of Section 65 of the Indian Evidence Act. The application is bereft of the particulars, which are required for
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discharging the proof, required under Section 65 of the Indian Evidence Act. 7. Merely, a vague averment made in the application that the document has not been traced, is not sufficient to allow the application for leading secondary evidence. Therefore, no illegality can be found in the order passed by the learned Trial Court.8. Resultantly, the present petition is dismissed, being devoid of merit. Pending miscellaneous application(s), if any, also stand disposed of. Record is ordered to be sent back to the learned Trial Court. Parties are directed to remain present before the learned Trial Court on 15th July, 2019.