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2017 Supreme(Gau) 1059
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
KALYAN RAI SURANA, J.
Kumuda Sundari Sen Girls’ High School and others – Petitioners
Versus
Sri Dolan Saikia – Respondent
C.R.P NO. 189 of 2016
Decided On : 25-10-2017
For the Petitioner: Mr. D. Medhi, Mr. P.K. Singha
For the Respondent: Mr. P. Mahanta
Headnote:
Constitution of India – Article 227 – Evidence Act, 1872 – Section 65, 11 and 61 – Seeking permission – Concerned Authority –Respondent is plaintiff and petitioners are the defendants in the said suit – Order to prove draft relating to suit land petitioners applied for a certified copy from concerned authority – Petitioners filed an application before learned trial court which was numbered as praying to allow them to adduce secondary evidence of said draft ‘chitha’ on strength of above referred certificate issued by Circle Officer – Respondent herein filed his written objection and learned trial court by order – Held, Procedural law must be construed to be a handmade of justice – Petitioner had earlier applied to adduce secondary evidence and according to this Court conditions required for introducing secondary evidence of ‘chitha’ did exist – Whether the document is proved by secondary evidence can only by decided at the hearing of suit – Petitioners did not anticipate that their application would be rejected under present circumstances court is of view that learned trial court committed jurisdictional error in rejecting the subsequent petition under the principle of res-judicata and/or constructive res-judicata – Court prior to introduction of secondary evidence admissibility of such evidence cannot be pre- determined and therefore, the principle of Section 11 cannot be made applicable in present case in hand – Application stands allowed.
Heard Mr. D. Medhi, learned counsel for the petitioners as well as Mr. P. Mahanta, learned counsel for the respondent.
2. By filing this application under 227 of the Constitution of India, the petitioners have challenged the order dated 15.12.2015 passed by the leaned Munsiff No. 1, Sonitpur, Tezpur in Misc. (J) Case No. 144/2015, by which the application filed by the petitioners under Section 65(c) of the Evidence Act, 1872 seeking permission to examine the concerned authority to prove that the ‘chitha’ relating to the suit land, which was reported to be “not available”.
3. The necessary facts of the case is short. The respondent is the plaintiff in T.S. No. 14/2010 and the petitioners are the defendants in the said suit. In order to prove the draft ‘chitha’ relating to the suit land, the petitioners applied for a certified copy thereof from the concerned authority. The concerned authority i.e. the Circle Officer, Chariduar Revenue Circle did not issue a certified copy and in that regard, the said authority had issued a Certificate under No. C.D.R. 07/2011-12/409 dated 17.06.2014, stating therein as follows –
“This is to certify that the certified copy of draft chitha for the year 1992 in respect of land measuring 3 katha 17 lessa, covered by Dag No. 36 of P.T. No. 131 situated at village Molanpukhuri, Mouza Balipara, could not be furnished due to non-availability. This certificate is based on the report of the Lat Mandal.”
4. Therefore, the petitioners filed an application before the learned trial court under Section 65(c) of the Evidence Act, 1872, which was numbered as 2402/14 dated 18.07.2014, praying to allow them to adduce secondary evidence of the said draft ‘chitha’ on the strength of the above referred certificate issued by the Circle Officer. The respondent herein filed his written objection and the learned trial court by order dated 05.11.2014, rejected 2402/14 dated 18.07.2014, rejected petition, firstly by disbelieving the photocopy of the draft ‘chitha’ on the ground that he did not bear the seal and signature of the office, secondly, on the ground that the certificate merely stated that the ‘chitha’ book was not available and, as such, it could not be presumed that the ‘chitha’ register book was destroyed/lost and thirdly the petitioner had failed to show that he had exhausted all resources and means in search of original documents.
5. In view of the said order dated 05.11.2014, the petitioner filed another application under Section 65(c) of the Evidence Act, 1872, seeking permission to adduce secondary evidence of the draft ‘chitha’ after examining the Circle Officer, Chariduar Revenue Circle or any other person authorised on behalf to prove the loss or destruction of the original records of the said ‘chitha’. The respondent filed his written objection and the learned trial court by order dated 15.12.2015, which is impugned herein, rejected the said application on the ground that the subsequent petition was barred by Section 11 explanation IV CPC.
6. The learned counsel for the petitioners submit that as per the scheme of the Evidence Act, 1872 there is no requirement of obtaining a prior leave of the trial court to introduce secondary evidence and, as such, if the condition precedent of introducing a secondary evidence of any document is present, the trial court is obliged to allow the party to adduce secondary evidence and the admissibility of the document may be decided by the court in accordance with law. It is further submitted that as the application of the petitioners was under Section 65(c) of the Evidence Act, 1872 the learned trial court was only required to satisfy itself as to whether the certificate issued by the concerned Circle Officer was genuine and to allow the petitioners to adduce secondary evidence on the document in question. It is stated that in view of the fact that the petitioners could only apply for a certified copy of the ‘chitha’, and if the concerned authority issues
