JUDGMENT :

Pankaj Jain, J. (Oral)

1. Challenge is to the order dated 13th of November, 2018 passed by Civil Judge, Junior Division, Kharar whereby application filed by the plaintiff to tender electronic evidence w.r.t. conversation between the plaintiff and defendant No.1 stands rejected.

2. For convenience, the parties hereinafter referred to by their original position in the suit i.e. the petitioner as the plaintiff and the respondents as the defendants.

3. Plaintiff filed suit for declaration to the effect that he is owner in possession of the suit land to the extent of 1/20th share as described in the headnote of the plaint. Further sought declaration to the effect that sale deed dated 30.06.2015 executed by Harmesh Singh in favour of defendant No.1 Makhan Singh is illegal, null and void and is result of fraud.

4. While the evidence of the plaintiff was going on the plaintiff moved an application seeking permission to tender electronic evidence under the certificate as prescribed under Section 65-B of the Evidence Act along with CD/DVDs. In the application itself the plaintiff further pleaded that he was ready to tender the original mobile-phone to the satisfaction of the Court.

5. The application was opposed. It was pleaded that the plaintiff has failed to satisfy the conditions for production of alleged evidence as the certificate could not be produced along with the application.

6. Trial Court vide impugned order dismissed the application holding that from perusal of the plaint the case is required to be proved by way of documentary evidence. In terms of Section 59 of the Evidence Act, oral evidence cannot be allowed to prevail over the documentary evidence and thus oral conversation as recorded in the mobile-phone cannot be of any use. It was further claimed that since the plaintiff has already closed his oral evidence and the defendant would not get any opportunity to cross-examine, the application is devoid of merits.

7. Counsel for the petitioner/plaintiff submits that the Trial Court has totally misread the provision as contained under Section 65-B of the Evidence Act. The plaintiff once offered even to tender the original mobile-phone, evidence sought to be tendered would not fall within the definition of 'secondary evidence' in form of the offer made by the plaintiff and thus there was no requirement of compliance with Section 65-B of the Evidence Act in case the original mobile-phone is ordered to be tendered. He, thus, submits that the plaintiff ought to have been granted opportunity to lead evidence.

8. Per contra, Mr. Suri opposes the revision petition submitting that the plaintiff has already closed his oral evidence and as per the prayer clause of the application, he only prayed for tendering the secondary evidence i.e. CD/DVDs and no certificate was produced along with the application. Thus, Trial Court rightly rejected the application.

9. I have heard counsel for the parties and have gone through records of the case.

10. In the present case, it is not disputed that the evidence of the plaintiff was in progress at the time the application was moved and had not been closed by that point of time. In Para 4 of the application, he specifically pleaded as under:

'4. That plaintiff/applicant is ready to tender the original mobile phone for the satisfaction of this court or to check its authenticity further the plaintiff/applicant is also ready to make compliance of Section 65-B of Evidence Act 1872.'

11. Thus, an offer was made to tender the original mobile-phone. Trial Court misread the entire situation.

12. The issue w.r.t. parameters to be considered while dealing with the application seeking permission to lead electronic evidence, has been dealt by the Supreme Court in the case of Anvar P.V. vs. P.K. Basheer (2014) 10 SCC 473 holding as under :

14. Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed un