Admissibility of secondary evidence under Section 65 of the Indian Evidence Act due to the loss of original documents.

Chander Bhusan Barowalia, J.

The present petition is maintained by the petitioner, under Article 227 of the Constitution of India, for quashing and setting aside the impugned order, dated 26.5.2017, passed by the learned Civil Judge (Junior Division) Court No. II, Ghumarwin, District Bilaspur, H.P, in Civil Suit No.1-1 of 2012 titled Inder Singh vs. State of Himachal Pradesh & ors, whereby the learned Court below, has allowed the application of the defendants/respondents filed, under Section 65 of the Indian Evidence Act.

2. Brief facts giving rise to the present petition are that the petitioner/plaintiff (hereinafter referred to as the ‘plaintiff’) maintained a suit for Permanent Prohibitory Injunction restraining the respondents/defendants (hereinafter referred to as ‘defendants’) from constructing a road through any part of land comprised in Khasra No.58 in Khata/Khatauni No.162/182 min. situated in Village Lanjta Pargana Ajmerpur, Tehsil Ghumarwin, District Bilaspur (hereinafter referred to as ‘suit land’) and further restraining the defendants from digging the land, cutting and destroying the plants/trees and from changing the nature of the suit land in any manner. The stand of the respondents through written statement is that the State of Himachal Pradesh has constructed the road with the consent of the petitioner/plaintiff, which was in the shape of an affidavit in the year 1993. Now, the Villagers have requested for metalling of the road and State has spent considerable amount. During the pendency of the proceedings, the respondents/defendants moved an application, under Section 65 of the Indian Evidence Act, averring that the petitioner/plaintiff alongwith other villagers had given donation letter, dated 16.8.1993 alongwith affidavit, but these documents have been lost and could not be traced out despite best efforts. Hence, the present petition.

3. Reply to the petition has been filed and it has been averred that the road known as “Rihru Gadod Badog Bhapral” was constructed during 1993 with the consent of land owners including the petitioner/plaintiff, on the demand and request of the inhabitants of the area. The work for metalling of the road was taken in hand, during 2012 and during the execution of work, plaintiff maintained a suit for Permanent Prohibitory Injunction. The original affidavit executed by the land owners were not traceable with the respondents, so the respondents/defendants filed an application, under Section 65 of the Indian Evidence Act, 1972 to adduce copy of affidavit in support of evidence. It is further submitted that had the original documents/affidavit been in the custody of the respondents/defendants, then the same would have been produced on record. The learned Court below after looking into the copy of affidavit, allowed the application, under Section 65 of the Indian Evidence Act, thereafter the witnesses as examined by the respondents/defendants have admitted the existence of these documents alongwith their signature on them.

4. Learned counsel appearing on behalf of the petitioner has argued that there is nothing on record to show that the original document was lost, rather the witness of the defendant examined in the learned Court below has stated that Gift Deed is with the Department. He has further argued that there is no proof that the original document is lost, so the order of the learned Court below is required to be set aside. In support of his arguments, he has relied upon the judgment rendered by the Hon’ble Apex Court in 2015 STPL 9855, SC titled Rakesh Mohindra vs. Anita Beri and others, on this aspect. On the other hand, learned Additional Advocate General has strenuously argued that the original document i.e. Gift Deed, which was executed by the plaintiff in favour of the State Government and affidavit was lost in the office, the same was not traceable and so, the photocopy, which is kept in the office was to be proved and produced in the learned Court below. He has