JUDGMENT
Sarojnei Saksena, J.
1. Petitioner-defendant has assailed the lower Court’s impugned order dated 1.12.1995 whereby the plaintiff-bank is allowed to adduce secondary evidence with regard to an agreement of guarantee dated 5.3.1986 executed by Parshotam Dass Goel, the petitioner. Affidavit of Parshotaam Dass Goel, agreement of guarantee dated 5.3.1986 executed by Dharam Pal Arya and Smt. Sundehri Devi and affidavit of Dharam Pal son of Kishan Chand. This civil suit is filed by the bank against the borrowers and these guarantors.
2. Petitioner’s learned counsel valiently argued that the plaintiff-bank has not adduced any evidence before the lower Court that these aforementioned documents were executed by the aforementioned persons in favour of the bank and further that these documents are lost. No issue was framed, no evidence was recorded and still plaintiff-bank was allowed to lead secondary evidence with regard to these documents.
3. He further submits that the trial Court has taken this fact into consideration that these alleged documents were produced before the investigating officer when the investigation in connection with F.I.R. Nos. 156 and 157 of 1987 was being conducted. These reports were lodged by the bank against the borrowers etc. on 15.3.1987 and 16.3.1987. After investigation, police submitted challan in connection with F.I.R. No. 157 of 1987 and submitted cancellation report in connection with F.I.R. No. 156. This cancellation report was sent to the Court on 16.8.1987. It is said that along with this report, original record was sent to the court but that record is missing from the Court. His main grouse is that the respondent-bank has not given any notice to this Investigating Officer to produce these documents as is mandatory Under Section 66 of the Evidence Act nor the bank has examined any witness to prove that these documents were executed by these persons, they were produced before the police and they are lost either in the police Station or in the Court as they were produced along with the cancellation report. According to him, the trial Court should have framed an issue with regard to the execution and loss of these documents and only after giving findings on issues, the Court should have allowed the plaintiff-bank to adduce secondary evidence with regard to these documents. To substantiate his contention, he has relied on Smt. Shanti Devi v. Harbans Singh 1990 P.L.J. 428 and Sham Lal v. Piara Lal, 1986(2) C.L.J. (C and Cr.) 144.
4. In my considered view, these contentions are preposterous. In Sham Lal’s case (supra), a single Bench of this High Court has held that no issue was framed by the trial Court on the point whether or not the secondary evidence of document be permitted. In Shanti Devi’s case (supra), single Bench of this High Court has held that before direction to adduce secondary evidence could be given, party must prove loss of original document as contemplated Under Section 65 clause (a) read with Section 66 of the Evidence Act. There cannot be any dispute with the principles laid down in these authorities, but an issue can be framed only when the point is controverted by the opposite party at that stage.
5. From the impugned order, it is evident that in support of the petition filed by the plaintiff-bank seeking permission to adduce secondary evidence with regard to these documents, affidavit of G.S. Chauhan, Branch Manager of the bank, was filed wherein he has mentioned that these documents were produced before the police when the bank lodged a report Under Sections 406 and 409 of the Indian Penal Code against the accused persons. The police submitted their report the Chief Judicial Magistrate, Karnal. In certain interim orders of that Court, the receipt of the documents is mentioned but later on, these documents were found missing. The Chief Judicial Magistrate has initiated an enquiry to fix the liability as to who is responsible for the loss of these documents. The petitioner or the other defendants in the said civil suit, have not filed any counter affidavit traversing the allegations made by Shri G.S. Chauhan in his affidavit. Hence there was hardly any necessity to frame an issue.
6. Further the trial Court has clearly mentioned that photo copies of these documents were filed along with civil suit. This civil suit was filed on 8.10.1987. The said criminal reports were lodged on 15.3.1987 and 16.3.1987. The bank record was produced during the investigation. Police submitted their cancellation report with regard to F.I.R. No. 156 on 16.8.1987 in the Court with original record of the bank. The Investigating Officer has already submitted his report to that effect in the Court of Chief Judicial Magistrate. Shri G.S. Chauhan has categorically stated in his affidavit that the original documents produced by the bank before the police at the time of investigation are lost. Hence, the lower Court relying on the aforesaid material held that the documents are lost without any fault or negligence of the plaintiff. Photo copies of documents are already on record. Hence, plaintiff- bank was permitted to adduce secondary evidence.
7. Shri V.K. Bali, petitioner’s learned advocate strenuously argued that no notice Under Section 66 of the Evidence Act was given by the plaintiff-bank before seeking permission Under Section 65(c) of the Evidence Act for adducing secondary evidence. The contention does not merit acceptance. When the party seeks permission to adduce secondary evidence Under Section 66 of the Act, then only a notice Under Section 66 of the Act is required to be given. Section 65 clause (a) provides “secondary evidence may be given of the existence, condition or contents of a document 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 out of 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 ;
(d) when the original is of such a nature as not to be easily movable ;
(e) when the original is a public document within the meaning of Section 74.
(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in (India), to be given in evidence ;
(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.
Section 66 of the Evidence Act provides that” the secondary evidence of the contents of the documents referred to in Section 65, clause (a) shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, (or to his attorney or pleader), such notice to produce it as is prescribed by law, and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case.”
8. Thus, it is obvious that the plaintiff-respondent’s case does not fall within the forecorner of Section 65(a) of the Evidence Act. Respondent-plaintiffs case falls Under Section 65(c) as the respondent-plaintiff has pleaded that the aforementioned original documents have been lost not because of its default or neglect and thus, it is unable to produce these documents in Court in reasonable time.
9. In my considered view, the trial Court has not fallen into an error in allowing the petition under consideration. The impugned order does not suffer from any infirmity or illegality or from any jurisdictional error. The said order if is allowed to stand, would not cause failure of justice, or cause an irreparable injury to the petitioner. Accordingly, revision, being meritless, is hereby dismissed.