Case Note & Summary
The petitioners, Om Health Centres Pvt Ltd and its director N. Prabhakar Rao, filed a writ petition under Article 227 of the Constitution of India challenging an order dated 20-7-2013 passed by the 7th Joint Civil Judge Senior Division, Thane. The impugned order rejected the petitioners' application (Exhibit 53) to lead secondary evidence in respect of an agreement dated 5-4-2004. The petitioners were the original plaintiffs in a civil suit. They claimed that the original agreement was lost and therefore they sought to lead secondary evidence of its contents. The trial court rejected the application on the ground that the plaintiffs had not sufficiently proved the loss of the original document. The High Court examined the facts and found that the plaintiffs had made diligent efforts to trace the document, including issuing a notice to the defendants to produce the original, filing an affidavit, and examining a witness. The court held that the trial court's approach was too strict and that the conditions for leading secondary evidence under Section 65 of the Indian Evidence Act, 1872 were satisfied. The court allowed the writ petition, set aside the impugned order, and directed the trial court to permit the plaintiffs to lead secondary evidence, subject to the plaintiffs proving the loss of the original document at the trial. The court also directed the trial court to expedite the hearing of the suit.
Headnote
A) Evidence Act - Secondary Evidence - Section 65 Indian Evidence Act, 1872 - Conditions for Admissibility - The plaintiffs sought to lead secondary evidence of an agreement dated 5-4-2004, claiming the original was lost. The trial court rejected the application on the ground that the plaintiffs failed to prove the loss of the original document. The High Court held that the plaintiffs had made sufficient efforts to trace the document, including issuing a notice to produce and filing an affidavit, and that the trial court's approach was too strict. The court allowed the petition and set aside the impugned order, directing the trial court to permit the plaintiffs to lead secondary evidence subject to proof of loss at trial. (Paras 1-15) B) Civil Procedure - Notice to Produce - Order 12 Rule 8 CPC - The plaintiffs had issued a notice to the defendants to produce the original agreement, but the defendants did not comply. The High Court noted that this was a relevant factor in considering the application for secondary evidence. (Para 10) C) Constitutional Law - Writ Jurisdiction - Article 227 of the Constitution of India - The High Court exercised its supervisory jurisdiction to correct an error of law by the trial court in rejecting the application for secondary evidence, as the trial court's order was perverse and resulted in failure of justice. (Para 14)
Issue of Consideration
Whether the trial court was justified in rejecting the application of the plaintiffs to lead secondary evidence in respect of the agreement dated 5-4-2004, when the original was allegedly lost and the plaintiffs had made efforts to trace it.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 20-7-2013 passed by the 7th Joint Civil Judge Senior Division, Thane, and directed the trial court to permit the petitioners to lead secondary evidence in respect of the agreement dated 5-4-2004, subject to the petitioners proving the loss of the original document at the trial. The trial court was also directed to expedite the hearing of the suit.
Law Points
- Secondary evidence admissible when original document lost despite diligent search
- Section 65 Indian Evidence Act 1872
- Article 227 Constitution of India
- Civil Procedure Code 1908 Order 13 Rule 1
- Notice to produce document
- Conditions for leading secondary evidence
