ORDER
1. This petition is filed by the plaintiffs challenging the judgment and order passed by the Sub-Judge, Nuzvid, dated 29-8-97 in O.S.No.80/89. By the impugned judgement and order the objections raised by the defendants has been upheld by holding that the plaintiffs would not be entitled to lead secondary evidence relating to the alleged agreement of sale dated 10-8-88. The Court below has also observed that the information regarding the contents alleged in the agreement dated 10-8-88, could not be elicited from PW3 since he is not mentioned as scribe in the plaint The Court below further held that at any rate without issuing notice under Section 66 of the Evidence Act, the plaintiffs cannot be permitted to lead any secondary evidence relating to the alleged agreement of sale. Learned Counsel for the petitioners contended that the observations of the Court below regarding the material points are not correct. He submitted that in the pleading there is a mention of PW3 being present at the time of the execution of the document and that PW3 was the scribe and therefore the Court below has misdirected itself in observing that PW3’s name was not mentioned in the plaint as a scribe. Secondly he contended that no notice is required under
Section 66 of the Evidence Act when the execution of the alleged document is denied by the Defendant No.l, Therefore he submitted that the impugned judgement is ,-illegal and without jurisdiction and the same is liable to be set aside. On the other hand Counsel for the respondents supported the impugned order. He submitted that from a reading of the entire plaint it discloses that no where PW3 is described as a scribe. When there is no indication in the plaint that PW3 was the scribe he cannot be examined as scribe of the alleged document dated 10-8-86 for the purpose of leading secondary evidence. He further submitted that whatever stand taken by the defendants, it is for the plaintiff to prove the ingredients of Section 66 of the Evidence Act. He further submitted that at any rate when the document is reduced into writing no oral evidence would be admissible.
2. By reading the impugned order, it is clear that the Court below refused the secondary evidence to be lead by the plaintiffs on two counts. 1. The entire plaint pleadings does not mention PW3 as, scribe of the agreement of sale dated 10-8-1988 and 2. the plaintiffs have not issued any notice to the defendants to produce the document and in the absence of such a notice, the plaintiffs are not entitled to lead secondary evidence.
3. In terms of Section 60 of the Indian Evidence Act, 1872 (in short ‘the Act’) the contents of the documents must be proved and under Section 61 of the Act the contents of the documents may be proved either by primary evidence or by secondary evidence. Now it is the ease of the plaintiffs that the alleged agreement of sale dated 10-8-1988 and also promissory not were delivered to the defendants for drafting and execution of the sale deed, but the defendants have not either executed the sale deed nor the agreement of sale was returned to them. Hence, they accordingly filed a suit for specific performance. From this fact pleaded by the plaintiffs, one thing is certain that according to the case of the plaintiffs, the alleged agreement of sale was given to the defendants, but they have denied the execution
of the sale. By filing the written statement, the defendants have denied the execution of alleged agreement of sale dated 10-8-1988. In this context, I have to see whether the impugned order of the Court below calls for any interference at the hands of this Court.
4. What should be kept in mind while leading secondary evidence is that the party which seeks to lead secondary evidence, should lay a proper foundation for reception of such secondary evidence. While drafting the plaint itself, the plaintiffs knew that they were not in a position to produce the original agreement of sale, since according to them the same was with the defendants. They also knew that by reply notice, the defendants had denied the execution of agreement of sale in their favour. If that is so, they should have laid foundation for leading secondary evidence clearly stating who was the scribe, that wrote the contends of the documents. The plaint though being a very detailed plaint running about 30 pages, does not give the information who was the person that drafted the agreement of sale. In the absence of that, it is difficult to hold that the plaintiffs laid the foundation for examining the scribe by the secondary evidence. However, the learned Counsel for the plaintiffs relied upon the judgment of the Rajasthan High Court reported in Mohanlal v. Kurkul Utpadak Sahakari Samiti, in support of his contention that the matters of evidence need not be pleaded. That was a decision in which the High Court of Rajasthan held that even without disclosing names and amounts of rent, the tenant could prove the amount of rent with reference to receipts. That was i- jt a case for leading secondary evidence. Hence, facts of that case do not apply to the facts of the present case. Even the judgment of the Punjab and Haryana High Court reported in Kirpal Singh v. Aas Kaur, also does not apply to the facts of this case. These two judgments pertain to a general principle that the matters of evidence need not be pleaded and there cannot be any dispute regarding such a principle. But in the instant case, the plaintiffs have to lay proper foundation for leading secondary evidence.
5. For that purpose they must specifically plead that they were not in a position to produce the document in question or the primary evidence and for that purpose they must state the nature of the document and the person who attested it and the person who scribed it etc., since they know that defendants have denied the execution of the agreement of sale, as on the date of the filing the plaint itself In such circumstances, all the necessary surrounding circumstances for the purpose of leading evidence must be specifically pleaded. In fact, the Hon’ble Supreme Court in Sitaldas v. Santram, , clearly laid down the law that proper foundation must be laid for reception of such secondary evidence and for laying such a foundation, the plaintiffs should specifically plead the contents of the document viz., the person who attested, the person who scribed it, whether original is either lost or they were not in a position to produce it, so as to inspire the confidence of the Court to receive the secondary evidence. Moreover, leading the secondary evidence is not a matter of course. Under Section 62 of the Act, the document must be proved by producing the primary evidence and under Section 91 of the Act, when the document is reduced in writing, no other evidence can be given except by way of producing the document itself. However, as contemplated by, Sections 61, 64 and 91 of the Act, secondary evidence also can be lead by complying the other provisions, of the Act i.e., by complying the conditions imposed under Sections 65 and 66 of the Act. The relevant portion of Section 65 provides as under:
“Cases in which secondary evidence relating to documents may be given:–Secondary evidence may be given of the existence, condition or contents of a documents in the following cases :
(a) 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 or, of any person cut or reach of, or not subject to the process of the Court or, of any person
legally bound to produce it and when, after the notice mentioned in Section 66, such person does not produce it;
(b) when the existence, condition, or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents, cannot for any other reason not arising from his own default or neglect, produce it in reasonable time.”
From this, it is clear that under Section 65(b) the party seeking to produce secondary evidence should prove the existence, ‘condition’ or ‘contents’ of the original. In order to show such an existence, conditions and contents of the document, the party seeking to adduce secondary evidence should plead and prove all the attendant circumstances, so as to invoke discretion of the Court in his favour, permitting him to lead secondary evidence. In other words, he should necessarily plead who executed the document, in whose favour it was executed, what are the contents of the documents, who are the attestors who was the scribe of the document etc. Section 65 of the Act is an exception to the general rule that the primary evidence shall be produced to prove a fact in issue. Hence, the party producing such a secondary evidence should necessarily plead and prove all the special circumstances for permitting him to lead secondary evidence. Tn these circumstances, it is clear that plaintiffs should have stated in the plaint, as to who was the scribe of the document, who could possibly speak regarding the contents of the document that was written by him. In the absence of such a proof of special circumstances for leading secondary evidence, the party cannot be permitted to lead the secondary evidence. Nevertheless such a party also should fulfill the requirements of Section 66 of the Act. According to Section 66 of the Act, the party proposing to lead such a secondary evidence should have given a notice to the party in
whose possession or power the document is and such a notice should necessarily be issued in the prescribed form. But as held by the High Court of Orissa in Chandra Sekhar v. Ahalya Devi, , when the plaintiff himself alleges that the defendant has already denied the execution of document, the secondary evidence cannot be refused only because a notice to produce such document was not given to the defendant. This ruling is issued presumably on the principle that when the execution of the document is already denied by the person, in whose possession the document is alleged to be issuing such a notice would be matter of idle formality, since if such a notice is issued there would be an obvious reply of denial. Therefore, in such circumstances, non-issuing a notice under Section 66 of the Act would not be a bar for permitting a party to lead secondary evidence and such a principle is based on a common prudence. At any rate, issuing such a notice would be unnecessary in case when the other party has already denied the execution of such a document, in the same proceedings, either by filing a written statement or by filing other objections. In the instant case, the plaintiffs have specifically stated in the plaint that such a document though executed by the defendants, they have denied the same with u mala fide intention. In such circumstances, in my considered opinion on the ground of non-issuing the notice in terms of Section 66 of the Act itself the Court below should not have refused the leading of the secondary evidence. Whatever it may be, as I have already stated, the plaintiffs have not laid the proper foundation for leading secondary evidence and laying such a proper foundation is a condition precedent for permitting the secondary evidence. Regarding the non-laying of the foundation for leading secondary evidence, the Court below observed as under:
“In the entire plaint pleadings it is no where mentioned that the PW3 scribed the agreement of sate dated 10-8-1988 and particular witness attested the agreement of sale and even in the notice issued by the plaintiff prior to institution of
the suit. Also, it is nowhere mentioned PW3 is scribe of the alleged agreement of sale and a particular persons are acted as attestors to the agreement of sale.”
From the above extract of the judgment, it is clear that, the Court below found ultimately, that the plaintiffs have not laid the foundation for leading the secondary evidence. Though the Court below may not be correct while observing that plaintiffs could not be permitted for leading secondary evidence, because they did not issue a notice to the defendants, but the Court below is correct while observing that the plaintiffs did not lay proper foundation for leading secondary evidence. In these circumstances, the impugned order being discretionary order, does not call for interference under Section 115 of Code of Civil Procedure. Accordingly, the revision petition is dismissed. No costs.