CW/2796/2005 of HANUMAN BUX and ORS. Vs SHRINIWAS and ORS. on 19 December 2005

SB Civil Writ Petition No.2796/2005

Hanuman Bux & Ors. v. Shri Sriniwas & Ors.thDate of Order :: 19 December, 2005

HON'BLE MR.JUSTICE GOVIND MATHUR

Mr. J.K.Bhaiya, for the petitioners.

Mr. Vikas Balia ]

Mr. D.D.Chitlangi] for the respondents.

....

The plaintiff respondent No.1 in hisstatement exhibited an original trust deed as Ex.3,certified copy of the same was put before him duringthe course of cross examination. Counsel for thepetitioners objected it on the ground that certifiedcopy is a piece of secondary evidence and on basis ofit no question could be asked, as the originaldocument itself is on record as Ex.3. The objection soraised was accepted by the trial court and by orderimpugned dated 26.4.2005 counsel for the defendantswas restrained from asking any question to PW-1 ShriSriniwas on basis of certified copy of the trust deedEx.3. The trial court granted permission to counselfor the defendants to ask question to PW-1 on basis ofdocument Ex.3.

Being aggrieved by order dated 26.4.2005 theinstant petition for writ is preferred by thepetitioners with a contention that the court belowerred while restraining counsel for the defendantsfrom asking question during cross examination by producing certified copy of trust deed Ex.3 as theprovisions of Order 13 Rule 1(3)(a) restrains theapplication of sub-rule(1) of Order 13 Rule 1 CPC.According to counsel for the petitioners a documentcan always be produced before a witness of other partyduring cross examination.

On the other hand, contention of counsel forthe respondents plaintiffs is that present one is nota case for production of document before the witnessof other party. According to him certified copy whichis sought to put forward in evidence is admittedly nota public document and original of it is already onrecord, therefore, the same is inadmissible inevidence. To substantiate the contention reliance isplaced upon a Division Bench judgment of this Courtgiven in the case of Kirpal Singh v. Mst. Kartaro andothers, reported in AIR 1980 Rajasthan 212, whereinHon'ble Division Bench held as under:- “Now, we have something interesting aboutthis condition. The original agreement Ex.1has been produced by the plaintiff andproved by the scribe D.W.1 Ramchander andattesting witnesses D.W.2 and D.W.3Charandass and Shriram respectively. Ex.1does not contain any clause that thepossession of a part of the land which wasto be delivered to the plaintiff on13.1.1968 would be handed over back to thedefendant in case of default by thedefendant to execute the sale deed. However,

such a condition is contained in Ex.2., copyof the agreement contained in the registerof P.W.1 Ramchander – scribe. P.W.1Ramchander states that the defendants wasknown to him from before but not theplaintiff, and that Ex.1 was scribed by himat the instance of the defendant and thatthe defendant had put his signaures on it inhis presence and had admitted the contentsof the same. Then, he states that there is acopy of Ex.1 contained in his register. Itmay be noted that he is not a petition-writer maintaining a regular register of thepetitions scribed by him. All that he saysis that Ex.2 is not a copy of Ex.1. He doesnot say that Ex.2 was prepared from orcompared with the original Ex.1. A documentis required to be proved by primary evidenceand only under certain circumstances whenprimary evidence is not available, then thecontents of the document may be proved bysecondary evidence. In order that anuncertified copy of the document may beadmitted in evidence, it is necessary thatthe copy must be prepared from or comparedwith the original. But in the present caseRamchander P.W.1 nowhere states that heprepared Ex.2 from Ex.1 or compared it withEx.1. In this view of the matter, theprimary evidence having been let in,secondary evidence of the same, according tous, was inadmissible in evidence moreparticularly when it does not satisfy therequirements of being a copy from orcompared with the original. Mr. Hastimal,however, strongly urged that it is adocument produced by the plaintiff's witnessat the instance of the plaintiff, and, therefore, the plaintiff is bound by thesame. We regret, we cannot accept thiscontention. When the primary evidence is onthe record, no credence whatever can begiven to Ex.2 even though it has beenproduced by the plaintiff's witness. We are,therefore, of opinion that the learnedSingle Judge was not justified in pressinginto service the contents of Ex.2 which didnot exist in the primary document Ex.1.”

`Learned trial court also passed the orderimpugned dated 26.4.2005 by relying upon the DivisionBench judgment above.

Heard counsel for the parties.

In the instant case the counsel for thedefendants want to ask a question in cross examinationto plaintiff's witness by producing certified copy ofthe trust deed Ex.3 for the purpose of corroborationand contradiction. According to defendant petitionerssome difference exists in original trust deed and itscertified copy. However, there is no dispute thatcertified copy of the trust deed Ex.3 is a secondaryevidence. A secondary evidence may be given of theexistence, conditions or contents of a document in thecases enumerated in Section 65 of the Indian EvidenceAct, 1872 (hereinafter referred to as “the Act of1872”). In the present case not a single circumstanceas enumerated in Section 65 of the Act of 1872 exists.

The trust deed is not a public document as definedunder Section 74 of the Act of 1872, as such it iscertainly a private document. When the originaldocument itself is on record then it is required to beproved by it only being primary evidence. The trialcourt, therefore, rightly accepted the objection andrestrained counsel for the defendants to ask questionsduring cross examination to PW-1 on basis of certifiedcopy of document Ex.3. The provisions of Order 13 Rule1(3)(a) is having no application in present set offacts as the document sought to be produced is alreadyavailable on record in its original. The law laid downby this Court in the case of Kirpal Singh (supra) ishaving total application in present controversy.

In view of whatever discussed above, I do notfind any error in the order impugned which may warrantinterference of this Court in its extraordinary aswell as supervisory jurisdiction. The writ petition,therefore, is dismissed with no order as to costs.

( GOVIND MATHUR ),J.