JUDGMENT
Hemant Gupta, J.
1. The plaintiff is in revision petition aggrieved against the order passed by the learned trial Court declining permission to lead secondary evidence in respect of mortgage deed dated 17.10.1963.
2. The plaintiff has filed a suit for declaration to the effect that he has become owner of land measuring 29 Kanals 17 Marias, as detailed in the plaint, due to passage of time on account of failure of the defendant to redeem the mortgage within the time prescribed. It was alleged that the said land was mortgaged by Tek Chand, predecessor-ininterest of the defendants, vide registered mortgage deed dated 17.10.1963, registered on 19.10.1963, for a sum of Rs. 5,000/-. The defendants denied the execution of the mortgage and asserted possession of Tek Chand over the suit land as owner of the land. On 9.1.1997, defendant No. 3 moved an application before the filing of the written statement for seeking a direction to the plaintiff to produce the original mortgage deed dated 17.10.1963. In reply to such application, it was stated by the plaintiff that the original mortgage deed is not traceable as it has been misplaced somewhere. The plaintiff has tried his best to trace out the original mortgage deed and as and when the same is traced, the plaintiff will produce the same before the Court. It is also stated that in case the plaintiff is not able to find out the original mortgage deed, he will move an application for leading secondary evidence as the mortgage deed dated 17.10.1963 is a registered document.
3. During the course of trial, the plaintiff moved an application on 20.8.2002 for permission to lead secondary evidence for just and proper decision of the case. It was pointed out that certified copy of the mortgage deed is already on the record and that the document is of such a nature that it cannot be manipulated by the plaintiff as the same is a registered document.
4. After receiving reply on behalf of the defendants, the learned trial Court dismissed such application for the reason that the mortgage deed is a private document executed between the parties and it cannot be proved by producing a certified copy. Still further, there is no mention as to when and under what circumstances the mortgage deed has been lost.
5. Learned counsel for the petitioner has raised two fold arguments. It is submitted that secondary evidence of a registered mortgage deed by way of its certified copy can be led in terms of the provisions of Section 65(f) of the Evidence Act as the mortgage deed is a private document kept in public record. Alternatively, it is argued that the plaintiff has made out a case for leading secondary evidence in terms of the provisions of Section 65(c) of the Evidence Act i.e. for the reason that the original has been lost. Reliance was placed upon judgments of this Court recorded as P.K. Gupta v. Varinder Sharma, (2002-2) 131 P.L.R. 385; Indian Overseas Bank v. M/s Shayama & Co. and Ors. (1993-1)103 P.L.R. 630; Smt. Raj Kumari v. Shri Lal Chand (1994-1)106 P.L.R. 190; Gurdial Kaur v. Registrar Co-operative Society, Punjab (2000-1)124 P.L.R. 156; and Nawab Singh v. Inderjit Kaur, (1999)4 Supreme Court Cases 413.
6. On the other hand, learned counsel for the respondents has referred to a Full Bench decision of this Court reported as Gutari v. Shiv Charan and Ors., 1980 All India Hindu Law Reporter 273; Single Bench decisions of this Court reported as Hira and Anr. v. Smt. Gurbachan Kaur, (1988-2)93 P.L.R. 173; Surinder Kumar v. Murari Lal and Ors., 1993(1) Revenue Law Reporter 278; Balbir Singh and Anr. v. Smt. Darshan Kaur and Ors., (1978)80 P.L.R. 239; Bhag Masih v. Sardha Ram and Anr., 1969 Cr.L.J. 271 as well as decision of the Supreme Court reported as The Roman Catholic Mission v. The State of Madras and Anr., A.I.R. 1966 Supreme Court 1457, to contend that the plaintiff has not made out a case for leading secondary evidence to prove the mortgage deed.
7. The argument that the certified copy of the mortgage deed is a public document being a private record kept by public authority is not sustainable in law in view of the Full Bench judgment of this Court in Gutari’s case (supra). It has been held therein that what is kept in the records of the Registering Authority is a copy of the original as the original is returned to the party and, therefore, certified copy is from a copy kept in the public record and the said certified copy is made admissible in evidence in terms of the provisions of Section 57(5) of the Registration Act. In the absence of Section 57(5) of the Registration Act, certified copy of such a document would not have been admissible at all. It is held to the following effect:-
“……The explanatory paragraph to section 65 envisages, as already observed in the earlier part of the judgment that secondary evidence of the original documents mentioned in clauses (e) and (f) of Section 65, could be adduced only in the form of certified copies and no others. Copies of the true copies given by the Registering authority of the original documents are not certified copies of the original documents and, therefore, would not be admissible as secondary evidence of the original document. In fact, but for the provision of sub-section (5) of Section 57 of the Registration Act, such a certified copy of a true copy could not have been received in Court to prove the contents of the original document. The said provision of sub section (5) of Section 57 was incorporated not to enact a law of the kind which permitted the giving in evidence of a certified copy of the original, as envisaged by clause (f) of Section 65 of the Act, but to overcome the difficulty of non-reception in evidence of a certified copy of a true copy, the same not being certified copy of the original, which alone qualified to be called secondary evidence in terms of section 63 of the Act.”
8. Still, further, while examining the argument that each of the clauses of Section 65 of the Evidence Act has to be read disjunctively and one is not to see as to whether the requirement of any other clause or the rest of the clause is complied with or not before the secondary evidence of the kind permitted by the explanatory paragraph of Section 65 can be let in. It was held that if the other party pleads that the document is forged one, the Court could summon the original and in case the original is not forthcoming on the ground of its loss etc., then unless such a fact is proved the Court would be entitled to draw adverse inference against such a party despite the fact that there is present on the record a certified copy of the original document. It was held as under:-
“…. Even in cases where a given document comes within the purview of clause (d), (e) (f) and (g) of section 65, there too if the other party pleads that the document is forged one, the Court could summon the original and in case the original is not forthcoming on the ground of its loss etc., then unless such a fact is proved the Court would be entitled to draw adverse inference against such a party, despite, the fact that there is present on the record a certified copy of the original document.”
9. In view of the aforesaid Full Bench decision of this Court, certified copy of registered mortgage deed cannot be held to be a public document certified copy of which can be produced in evidence as secondary evidence in terms of Section 65(f) of the Evidence Act.
10. Now the claim of the petitioner for permission to lead secondary evidence in terms of Section 65(c) of the Evidence Act is required to be examined. The plaintiff has not made any mention of non-availability of mortgage deed in the plaint. However, in reply to the application for production of mortgage deed, the plaintiff has clearly stated that the mortgage deed is not in his possession and is trying to locate the same. He has also mentioned that if he is unable to locate the original one, he will move an application for permission to prove by secondary evidence. Thereafter, the defendants have filed written statement and contested the suit. The question which arises is whether in these circumstances the plaintiff can be granted permission to lead secondary evidence to prove the execution of the mortgage deed
11. In Him and another’s case (supra additional evidence was sought of agreement to sell. The trial Court declined the same and the high Court affirmed the said order. In the said case, the plaintiff has sought to lead secondary evidence to prove the document after 2 or 3 opportunities to produce evidence was given. One of the reasons which weighed with the Court was that no allegations have been made at the time of filing of suit that agreement to sell has been lost or destroyed.
12. In Surinder Kumar’s case (supra), the permission to lead secondary evidence was declined for the reason that in the plaint no reference was made that the original mortgage deed was lost or destroyed.
13. In Balbir Singh’s case (supra) the Court has returned a finding that before allowing secondary evidence it was necessary for the Court to give a finding whether the Will has been lost or damaged or whether the plaintiff was not producing it on account of any other reason.
14. In Bhaghdasih’s case (supra), the plaintiff has not stated in his plaint that he has lost the mortgage deed but while appearing as a witness he has deposed that he had filed the original mortgage deed in some Court but did not remember the date or the year when he filed or the Court in which he filed. It was, thus, concluded that the plaintiff did not make out a case for secondary evidence.
15. In The Roman Catholics Mission’s case (supra), the Court has observed that the original was not produced at the time of evidence nor any foundation was laid for leading secondary evidence.
16. On the other hand, as per judgment in Indian Overseas’ Bank’s case (supra) referred to by learned counsel for the petitioner, the plaintiff is required to be given an opportunity to prove the loss of the document.
It was held to the following effect:-
“…. In my view an opportunity ought to have been afforded to the petitioner to prove the loss and if the loss was then proved, an opportunity ought to have been afforded to produce/prove these documents by way of secondary evidence. If the plaintiff then failed to prove the loss, the non-production of documents by way of secondary evidence would have been perfectly justified. If the lorry Receipts/Goods Receipts had not been pleaded and produced on the record, then these documents would have been wholly irrelevant. The documents sought to be produced and proved by way of secondary evidence are certainly relevant to the point in issue in this case. There can be no manner of doubt that the plaintiff was remiss in not producing/proving these documents at the initial stage and also in not relying upon them but for that the defendants, as already stated, an be compensated by award of costs…”
17. In Smt. Raj Kumari’s case (supra), the petition writer has appeared in the Court to prove the deed of partition and the person in whose possession the document could be found are either dead or have denied the execution of the document, the Court held that the party seeking permission to produce secondary evidence is not required to prove the loss of document in absolute terms. The Court held to the following effect:-
“… Thus, the plaintiff has successfully proved on record that the original document has been lost. Secondary evidence is permissible when the original document has been destroyed or lost or when the party offering evidence of its contents, cannot for any reason, not arising from his own default or neglect, produce it in reasonable time. A party seeking permission to produce secondary evidence regarding a document, is not required to prove the loss of document in absolute terms…”?
18. In Gurdial Kaur’s case (supra) the Court held that secondary evidence can be allowed subject to his proving due execution of the document. It was held to the following effect;-
“lt was held in Krishan Kumar v. Pal Singh, (1989-1)95 P.L.R. 55 that “it was incumbent upon the respondent to lead evidence to prove existence of the original will”. Impugned order could not be passed without evidence to that effect had been led “learned trial Court could not have allowed the Company to lead secondary evidence without the Company having proved that original receipts had come into existence and they got lost after they had come into existence. Learned counsel for the petitioner submitted that when receipts had not been pleaded in the written statement, no permission to lead secondary evidence thereof could have been asked for. In Gurditta v. Balkar Singh and Anr., (1989-1)95 P.L.R. 418, it was observed that “where agreement to sell was never pleaded in the written statement application to lead secondary evidence by way of photostat copy was filed after more than two years, there was no occasion for the trial Court to allow the defendant to lead secondary evidence particularly when the existence of the original document was not proved.” It was held that the observations made by the trial court that secondary evidence is allowed subject to his proving the due execution of the agreement and loss thereof was wholly irrelevant because the secondary evidence could be allowed only if the existence of the original document was proved in the first instance. In Ved Parkash and Anr. v. Smt. Kartar Kaur and Ors., (1993-2)104 P.L.R. 452, it was held that “in order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution-of the original document.”
19. Still further, in P.K. Gupta’s case (supra) the plaintiff was allowed to prove the loss of document after leading evidence. It was held as under:-
“In the present case, no evidence has been led to show either the existence of the document or any opportunity to lead any evidence has been afforded. It appears to me that there is a possibility either way to decide the contentious issue by the Civil Judge only after allowing opportunity to both the parties. Such an application should not have been decided in a summary manner adopted by the Civil Judge.”
20. In view of the judgments cited above, the party seeking to produce the secondary evidence can be permitted to prove the execution of the document if the loss or destruction of the document is proved. If the Court on the basis of averments made in the application for secondary evidence and the reply, if any, is satisfied about the loss or destruction of the document, the Court shall permit leading of secondary evidence. Such permission of the Court to lead secondary evidence is summary in nature and the party propounding the document has to prove the factum of execution of the document during the course of trial.
21. In the present case, the plaintiff has, prima facie, made out a case for loss of document. The mortgage deed is a registered document. The original of the same was required to be with the plaintiff. Since the plaintiff has not been able to locate the same, nothing more could be proved or stated by the plaintiff before which the plaintiff could be permitted to lead secondary evidence.
22. Consequently, I am of the opinion that the order passed by the learned trial Court suffer from patent illegality or material irregularity and is not sustainable in law.
23. In view of the above, revision petition is allowed and the impugned order is set aside. The petitioner is permitted to prove the execution of the document by way of secondary evidence.