The admissibility of secondary evidence under Section 65 of the Indian Evidence Act depends on the well-proved loss or destruction of the original document.

Ritu Bahri, J.

Petitioner has filed the instant revision petition under Article 227 of the Constitution of India assailing order dated 07.10.2014 (P-1) passed by Civil Judge (Jr. Divn.), Pataudi whereby application filed by the petitioner for leading secondary evidence in respect to affidavit dated 06.03.2006, has been dismissed on the ground that the petitioner failed to prove the existence of the affidavit.

2. Petitioner in his written statement has stated that the time of execution and registration of sale deed bearing vasika No.3548 dated 06.03.2006, Vijay Pal and Smt. Savita, parents of Prithi Singh had handed over an affidavit to it regarding Prithi Singh's age. The original affidavit was within the possession of petitioner. As per affidavit, the date of birth of Prithi Singh was 10.02.1988 and he was major. The sale deed was executed in favour of the petitioner by respondent No. 1 vide vasika No. 3548 dated 06.03.2006 for a valuable sale consideration of Rs.16,50,000/-, which was received by him through Demand Drafts bearing No.009651 dated 14.01.2006 for Rs.2,75,000/- and 490437 dated 14.01.2006 for Rs.13,75,000/-. The drafts were got encashed by respondent No.1. Thereafter, respondent No.1 became dishonest and filed a suit for declaration with a consequential relief of permanent injunction projecting himself that he was minor at the time of execution and registration of the sale deed and thus, challenged the same.

3. The petitioner filed written statement and denied all the allegations and averred that the date of birth of respondent No.1 was 10.02.1988 and he was major at the time of registration of the sale deed and placed on record the duly sworn affidavit by parents of respondent No.1 and attested by Executive Magistrate, Farrukhnagar. In cross examination of respondent No.1, respondent No.1 recognised and acknowledged the signatures of his father on the affidavit.

4. Thereafter, the petitioner filed the application for leading secondary evidence in respect to affidavit dated 06.03.2006, as the same has been lost but the application has been dismissed.

5. Learned counsel for the petitioner has vehemently argued that as per Section 65 of the Indian Evidence Act, the application filed by the petitioner should have been allowed, as the copy of the affidavit sought to be produced by way of secondary evidence, was already available on record and filed at the time when the written statement by the petitioner was presented and thus it cannot be stated or presumed that the affidavit was not in existence.

6. Reference has been made to judgments passed by this Court in cases of M/s Ram Dass Hira Lal and another v. Sunil Kumar Sekhri and others, 2007 (4) RCR (Civil) 313 and Kamlesh Rani v. Sukhdev Nagpal and others, 2012 (1) HLR 95 whereby it was held that if loss or destruction of a document is well proved, court should not decline to accept secondary evidence of a such document. Trial Court formulate its opinion whether the document has been destroyed or lost and also look into the evidential value of the document.

7. On the other hand, learned counsel for the respondents has referred to a judgment of Hon'ble the Supreme Court of India in a case of Smt. J. Yashoda v. Smt. K. Shobha Rani, 2007 (2) RCR (Civil) 840 whereby Hon'ble the Supreme Court while considering the provisions of Section 63 and 65 held that Secondary evidence, as a general rule is admissible only in the absence of primary evidence. If the original itself is found to be inadmissible through failure of the party, who files it to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contents. Essentially, secondary evidence is an evidence which may be given in the absence of that better evidence, which law requires to be given first, when a property explanation of its absence is given.

Section 65 of the Indian Evidence Act, reads as under :-

"65. Cases in which secondary evidence relating to documents may be given.-Seco