1. This revision petition under Section 115 of the Code of Civil Procedure, 1908 is directed against the order dated 1-12-1997 whereby the learned lower Court has permitted the plaintiff-non-petitioner to cross-examine DW 1 Amarjeet singh with reference to the copy of the assessment order for the year 1980-81 filed by the plaintiff under Section 65 of the Evidence Act.
2.1 have beared Mr. A.K. Acharya the learned counsel appearing for the defendant-petitioner and Mr. Bhupendra Bhatnagar, the learned counsel for the plaintiff-non-petitioner.
3. The learned counsel appearing for the petitioner has assailed the impugned order dated 1-12-1997 on the ground that the learned lower court has not stated a single word about the fact as to whether the plaintiff-non-petitioner was entitled to produce the secondary evidence. Section 65 of the Evidence Act contains the cases in which secondary evidence relating to documents may be given. Looking to the nature of the document, it could have been presumed that the original was with the witness but before according permission to lead secondary evidence, a notice under Section 65 of the Evidence Act ought to have been given to the witness requiring the production of the document in original. In the instant case, no notice was given to the witness to produce the document in original. Hence, the plaintiff was not entitled to produce the photostat copy of the alleged assessment order” for the year 1980-81 and to confront it to the witness.
4. The learned counsel for the non-petitioner has supported the impugned order on the ground that the assessment order related to the witness and he was supposed to have its original with him. Thus, the learned lower Court has not committed any illegality or material irregularity in exercise of its jurisdiction in passing the impugned order.
5. I have considered the rival contentions made at the bar. To allow a party to lead secondary evidence under Section 65 of the Evidence Act, firstly the Court is required to determine the entitlement of the party to lead such secondary evidence. Section 65 of the Evidence Act enumerates such cases and it clearly (sic) down that secondary evidence may be given of the existence condition or contents of a document, when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved. In the instant case since the document in question must have been in possession of the witness because it related to him and, therefore, the plaintiff was entitled to produce the secondary evidence. However, under Section 66 of the Evidence Act, it is obligatory that secondary evidence of the contents of the documents referred to in Section 65 clause (a) shall not be given unless the party proposing to given such secondary evidence has previously given to the party in whose possession or power the document is, such notice to produce it. In the instant case, admittedly no such notice was ever issued to the witness by the plaintiff. Further before according permission to produce secondary evidence, the Court is required to satisfy itself whether the document sought to be produced falls within the definition of secondary evidence as defined in Section 63 of the Evidence Act. In the instant case, the document in question appears to be a photostat copy of its original assessment order but there should be some evidence that this copy was made from its original by the photostat machine. However, no such material is available on the file of the case.
6. For the above reasons, I hold that the learned lower Court has committed illegality or material irregularity in exercise of its jurisdiction in according permission to the plaintiff to produce photostat copy of the assessment order of the yean 1980-81.
7. In the result, I allow this revision petition and set aside the order dated 1-12-1997 passed by the learned Addl. Civil Judge (Senior Division ) No. 2, Udaipur. The parties are left to bear their own costs.