Courts should adopt a liberal interpretation of Section 65 of the Evidence Act, 1872, in light of changing technology and the accuracy of photocopies.

DR. PUSHPENDRA SINGH BHATI, J.

1. Counsel for the petitioner has preferred the instant writ petition under Article 227 of Constitution of India for the following reliefs:-

(a) by an appropriate writ, order or direction, the impugned order dated 14.02.2019 (Annex. 10) passed by the learned Additional District & Sessions Judge, Sojat in Civil Original Suit No. 29/2017 (73/2014) (M/s. Siddhi Vinayak Cement Pvt. Ltd. Vs. Baldevram & Ors.) may kindly be declared illegal and be quashed and set aside.

(b) by an appropriate writ, order or direction, the application filed by the petitioner under Section 65 of Evidence Act, 1872 may kindly be allowed and the petitioner may kindly be permitted to adduce in evidence the secondary evidence in the form of photocopy of the public notice dated 02.01.2011 in the said proceedings.”

2. The petitioner claims itself to be the successor-in-title in relation to the land falling in Khasra No. 416 admeasuring 18 bighas located at Village Nimbol, Tehsil Jaitaran, District Pali. The petitioner submitted an application under Section 65 of the Indian Evidence Act, 1872 alongwith an affidavit for taking public notice dated 02.1.2011 on record as published in ‘Dainik Navjyoti’ through the counsel Shri Ramgopal Sharma on behalf of M/s. Siddhi Vinayak Cement Pvt. Ltd., however, the same was rejected by the court below vide order dated 14.2.2019. Counsel for the petitioner relied upon the judgment of this Court in Maharaj Kumar Chand Vs. Jodhpur Film Vitrak Sahakari Samiti Ltd., reported in RLW 1999(1) Raj page 977, relevant portion whereof read as follows:-

“2. It is being contended by the learned Counsel for the revision petitioner before me that loss of document can be proved by the statement of the defendant alone because he was in custody of the documents. When he has stated on affidavit that he had lost the documents, there could be no other evidence to contradict him and therefore, the question was of the credibility of his statement. If the trial court was not satisfied by statement on oath in an affidavit it could have permitted cross-examination on the affidavit of the defendant, but could not have rejected the averments in the affidavit outright. It was also contended that when photo-copies of the documents were already on record and there is no material on record to show that the defendant was playing a deliberate mischief, the secondary evidence should have been allowed to be led. The learned Counsel for the non-petitioner in reply submitted that if the statements of the parties are taken on their face value, no application under Section 65 of the Evidence Act for permission to lead secondary evidence on the ground of loss of documents could be rejected and the parties would be at the mercy of the other side and will have to contend with secondary evidence of non-existing documents.

3. I have carefully considered the question involved in this case. The difficulty of a person who has genuinely lost a document is understandable. When he states on oath that the originals in his custody have been lost, in most of the cases he may not have any other evidence to prove the loss except his own knowledge, corroboration being almost impossible in such cases. Even if it is possible to give some evidence of the existence of the document and of the fact that document was in the custody of a party, hardly any evidence except, the evidence of the party himself may be available of the loss of the document. In any case a party cannot be shut out from contending that he was in the custody of the originals at a particular time and subsequently lost them. This he is expected to do by an affidavit only because there is no other practical method, by which it can be inquired into as to whether conditions for allowing secondary evidence...or not. If oral evidence is taken on the question of the custody and the loss of the documents or on the general question as to whether prerequisites of Section 65 of the Evidence Act