Thursday 1 January 2015

When photocopies of judicial orders can be used as secondary evidence?

 Be that as it may, there is no dispute that the documents at serial
nos.3,6,8 & 22 are copies of judicial orders and although it was stated by
the plaintiffs in their reply that they did not have objection for the
introduction of secondary evidence of the said documents at serial
nos.3,6,8 & 22, the photocopies of which were given to the plaintiffs, it
appears that the plaintiffs had given no objection for production of
photo/xerox copies of the said judgments, and, if that be so, in my view,
the learned Civil Judge could not have been right in disallowing the
application to the extent that the plaintiffs had given no objection for the
production of photocopies of the said judicial orders.
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO.121 OF 2009
MESSR, SHANTILAL KHUSHALDAS
AND BROTHERS PVT. LTD.,

V/s
 Smt. Radha Nandlal Karlo,


CORAM : N.A. BRITTO J.
DATE : 9th JUNE, 2010
Citation;2010 ALLMR(supp) 614,2010(4) BomCR597


2. The petitioner herein is the defendant no.1 in Special Civil Suit
No.5/1994/A. This writ petition is filed by them challenging the order
dated 7/01/2009 of the learned Civil Judge Senior Division, Vasco-da-
Gama by which the learned Civil Judge has declined to grant their
application dated 17/11/2008-Exhibit 164.
3. The suit was filed by Raghuvir Rajaram Paigankar and after his
demise the respondents herein were brought on record. Respondents
nos. 2 to 5, who are the legal representatives of the said Raghuvir
Paigankar continue to be defendants nos. 2 to 5 in the said special suit
while respondents nos. 1 to 5 have been brought on record as plaintiffs.
4. According to the defendant no.1, at the time of filing the written
statement, the defendant no.1 had enlisted the documents in the list of
documents accompanying the written statement and which were served
on the respondents. According to the defendant no.1, the file containing
the documents of the defendant no.1 i.e. the petitioner, which was kept
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in their office was misplaced/lost during the pendency of the suit and as
the photocopies of the said documents were already on record of the file,
the defendant no.1 filed an application dated 21/10/2008 to produce
secondary evidence and the said application came to be rejected by order
dated 4/11/2008, inter alia, on the ground that it was premature as the
defendant no.1 had not served a notice under Section 66 of the Evidence
Act, prior to filing the said application.
5. Thereafter, the defendant no.1 issued notices dated 01/11/2008
under Section 66 of the Evidence Act to respondents nos. 1 to 9 calling
upon them to produce the originals of the said documents and as the
respondents failed to comply with the notice, the defendant no.1 filed
another application dated 17/11/2008 seeking leave to produce and rely
upon secondary evidence on the ground that the aforesaid documents
were in possession of respondents nos.1 to 5 and/or respondents nos. 6
to 9, who had failed to comply with the notice issued by the petitioner.
The said application came to be dismissed by the impugned order.
6. The case of the petitioner/defendant no.1 was that the documents
mentioned at serial no. 1 to 26 were lost and the application of defendant
no.1 dated 21/10/2008 was dismissed by order dated 4/11/2008 as
premature as no notice under Section 66 of the Evidence Act was given
and, thereafter, the defendant no.1 had served a notice upon the plaintiffs
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as well as defendants nos. 2 to 5 but they had not responded to it and
therefore they be allowed to prove the said documents by secondary
evidence. As per the plaintiffs, they did not have the said documents in
their possession at any time as their previous advocate had not handed
over to them the file containing the said documents and he had
withdrawn from the case and the same appeared to have been given to
defendants nos. 2 to 5. The defendants nos. 2 to 5 in their turn stated
that it is the plaintiffs who should have been in possession of the some
of the documents as they were addressed by defendant no.1.
7. According to Shri Rao, the learned Counsel of the
petitioner/defendant no.1, photo/xerox copies of all the documents i.e. 1
to 26 were filed along with the written statement. However, when the
finding of the learned Civil Judge was brought to his notice that the
documents at serial no.2,5,12,13,16 & 25 were not on record, Shri Rao,
has fairly submitted that the petitioners would press for their application
for the documents, copies of which were on record. Shri Menezes,
appearing on behalf of defendants nos. 2 to 5 has adopted the
submissions made by Shri Mascarenhas on behalf of the plaintiffs and
has further contended that the defendant no.1 did not even make use of
the said documents/copies at the time of cross-examination of the
plaintiffs. However, in my view, the fact that the defendant no.1 did not
make use of the said photo copies cannot come in their way of allowing
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the application; presumably they did not make use of the same because
they did not have the original of the said documents and leave to
produce copies was not granted in their favour.
8. Be that as it may, there is no dispute that the documents at serial
nos.3,6,8 & 22 are copies of judicial orders and although it was stated by
the plaintiffs in their reply that they did not have objection for the
introduction of secondary evidence of the said documents at serial
nos.3,6,8 & 22, the photocopies of which were given to the plaintiffs, it
appears that the plaintiffs had given no objection for production of
photo/xerox copies of the said judgments, and, if that be so, in my view,
the learned Civil Judge could not have been right in disallowing the
application to the extent that the plaintiffs had given no objection for the
production of photocopies of the said judicial orders.
9. Shri Mascarenhas, the learned Counsel appearing on behalf of the
plaintiffs has fairly conceded that the documents at serial nos. 4,7,9,10
& 24 are copies of correspondence addressed by defendant no.1 to the
plaintiffs and, being so, the plaintiffs would have no objection in case
the defendant no.1 is allowed to lead secondary evidence of the same
with a right to raise an objection as available in law. Accepting the said
statement, the defendant no.1 would be allowed to lead secondary
evidence of the said documents namely at serial no. 4,7,9,10 & 24.
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Admittedly, the documents at serial no.2,5,12,13,16 & 25 were not on
record and the application of the defendant no.1 is not pressed as regards
the said documents. Document at serial no.2 was also disallowed based
on judgment of this Court dated 27/09/2006.
10. Documents at Serial No.11,19,20 and 21 can also be allowed to
be proved on the same principle as documents at serial no.4,7,9,10 & 24.
11. It is submitted on behalf of plaintiffs that the documents at serial
nos.1,14,15,17,18,23 & 26 is a correspondence/documents which pertain
to third parties or parties who are not known; and there is no issue
raised as regards this submission made on behalf of the plaintiffs, by
defendant no.1.
12. That being the position in my opinion the Writ Petition deserves
to succeed. The application of the petitioner/defendant no.1 dated
21/10/2008 is allowed partly with leave to the petitioner/defendant no.1
to produce secondary evidence of the documents as indicated herein
above.
13. Rule made absolute on the above terms with no order as to costs.
N.A. BRITTO, J.
NH/-
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