From the perusal of the above provision, it is clear that the only requirement of the provision is that the original must be shown to have been lost. In the instant case, there is clear cut unchallenged evidence that the original is lost and the evidence has come from the person who was the custodian of the document, to which there is no cross examination at all. Thus, I do not think that any additional evidence on the loss of document could possibly be given that too in the absence of any cross examination on that point since it was never the case of the respondent that the original was still lying with somebody. I said fact. wonder what more details or evidence could be brought to prove.
In this behalf, it would be appropriate to quote following portion from Vishwanath Vithoba. vs.. Genu Kisan & ors.; cited by Mr. Purohit, learned counsel for the appellants.
“3.
…..Mr. Sukhthankar has urged that these copies of the saledeeds are not admissible in evidence. The plaintiff has stated in his evidence that the original saledeeds are not in his possession but they are in the possession of defendant 1. The
plaintiff did not, however, give any notice to defendant 1 asking him to produce the original sale deeds. Mr. Sukhthankar has, therefore, urged
that the certified copies are not admissible in
required by Clause (a) of Section 65, Evidence Act.
The proviso to Section 66, however, enables the evidence as no notice was given todefendant 1 as Court to dispense with such notice in any case, in which the Court so thinks fit. In ‘Surendra Krishna v. Mirza Mahamed Syed All’, 1936 PC 15 (AIR V23) (A) Their Lordships observed:
“The only purpose of a notice under Ss.
65 and 66, Evidence Act, is to give the party an opportunity by producing the original document to
secure, if he pleases, the best evidence of Its contents, The difference between a certified copy and the original for the purposes of the present case is not
very obvious but secondary evidence is admissible when the party offering evidence of its contents cannot for any reason not arising from his own default or neglect produce the original document in
reasonable time; and under Section 66 the court has absolute power, when it thinks fit, to dispense with
a notice under these sections”.
In the present case after the death of
Gyanuji, the next senior member of the family was Vithoba. The three saledeeds therefore in all probability went into the possession of Vithoba and after his death into the possession of the defendants.
The plaintiff has stated that the original saledeeds are not with him. He has also stated that they are in the possession of defendant 1. There was no cross
statement on this point. Defendant 1 in his evidence did not deny examination of the plaintiff in regard to his that the original saledeeds were in his possession. It
would have been desirable If a question had been
put to him on this point in the crossexamination by
the plaintiff. But as the record stands, the plaintiff’s statement that the original saledeeds are with defendant 1 remains unchallenged. This is also in accordance with the probabilities of the case.
The certified copies of three saledeeds
Exhs. 75, 76 and 77 were also produced by the
plaintiff along with the plaint. He has specifically stated in the plaint that these saledeeds related to the three suit houses. There was no denial of this
statement In the defendants’ written statement. If, therefore, the original sale deeds are
in the possession of the defendant 1 as deposed to by the plaintiff and as the plaintiff’s statement that the certified copies of the three saledeeds produced by him related to the suit houses has not been denied by the defendants, we think this would be a proper case in which notice as required under Clause (a) of Section 65, Evidence Act, should be dispensed with. In that case, the three certified copies, exhs. 75, 76 find 77 would be admissible under Clause (a) of
Section 65, Evidence Act. not in the possession of the defendants and as they are also not in the possession of the plaintiff, they
On the other hand if the saledeeds are
must be deemed to have been lost. In that case, the certified copies would be admissible under Clause (c) of Section 65. The learned Judge was therefore right
in admitting these three documents in evidence”. I think, the facts and the law stated by the Division Bench of this Court in the above case are somewhat akin to the
facts in the instant case.
The reported decisions in this behalf cited by Mr. Saboo, have been seen by me. In the case of State of Rajasthan ..vs.. Khemraj & ors. (supra), the Supreme Court permitted the appellant therein to file fresh application to seek permission to lead secondary evidence.. In the case of Ganpat Pandurang Ghongade & ors. ..vs.. Nivrutti Pandurang Ghongade; (supra), there was no evidence at all on record to show that the original was not available. In the case of Shiolalsingh Gannusing Rajput..vs.. Shankar Motiram Nale; AIR 1984 Bom. 19 the issue was totally different about the permission arising under section 90 of the evidence Act.
To sum up, I must hold that the sale deed Exh.86 was duly, properly and legally proved and the requirement of section 65 of the Evidence Act, proof of loss was also established. Section 65 of the Evidence Act does not contemplate any specific requirement of filing application for leading secondary evidence. But, it is always better to have application with properly affirmed pleadings. To sum up, I answer the question no.(i) in the affirmative.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
Second Appeal No.554/2003
Madanlal Virbhanji Madan, V Ramrao Mahadeorao Gomase
Citation; AIR 2015(NOC)654 Bom
Dated;30-7-2014