# Ram Das Singh and Anr v. Duli Chand /Plantiff

- **Citation:** Second Appeal No. 344 of 2013
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-04-17
- **Case number:** Second Appeal No. 344 of 2013
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-das-singh-and-anr-v-duli-chand-plantiff-42881
- **Pages:** 8

## Headnote

Code of Civil Procedure, Section 100-second
Appeal-additional evidence photostate copy
of map-alleged to prepared by Lekhpalwhether
admissible
in
evidence-being
secondary
evidence?-held-'No'
unless
execution of original document proved
Secondary evidence-not admissible-lower
appellate Court without considering these
aspect-held-otherwise without any basis-
1 All Ram Kishore And Ors. Vs. State of U.P. & Ors.
477
complete ignorance of aforesaid procedureorder set a side.

Held: Para-23
Next is the question that even when a
secondary evidence is admitted, unless a
formal proof thereof is dispensed with
under any provision of statute, such a
document has to be proved otherwise
also it is not admissible. In the present
case,
Lower
Appellate
Court
while
entertaining
Xerox
copy
of
alleged
revenue map has completely ignored all
the aforesaid procedure. Though it has
admitted additional evidence at the
stage of appeal but without satisfying
requirement of law with regard to
admission of secondary evidence as also
its proof. Such document could not have
been read in evidence.
Case Law discussed:
AIR 1935 PC 125; 30 IA 44; 7 CWN 849;
(2007) 5 SCC 730; AIR 1975 SC 1748; AIR
2002 P & H 342; JT 2002(2) SC 163; AIR 2004
AP 439

## Text

476 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

The Hon'ble Apex Court further
direct that these daily-wagers would be
entitled to draw at the minimum of the pay
scale being received by their counterparts
by the Government and would not be
entitled to any other allowances or
increment so long as they continue as
daily-wagers.

19. Needless to mention that the
dearness allowance is applicable to the
minimum of the pay scale for which the
daily-wager are entitled, of course, they
are not entitled for the other allowances
like washing, medical etc. as mentioned
by the Apex Court (supra). The purpose
of paying dearness allowance is to meet
the inflation. So, the dearness allowance
is to be determined as per price index
from time to time. Everybody is suffering
with the inflation.

20. It may be mentioned that in
India, the Dearness Allowance has a
history dating back of World War II. At
that time, many of the lower-paid
employees received Dearness Allowance
Based on their wages or salaries. Many
changes to Dearness Allowance and its
computations have occurred over the last
so many years, according to both private
and government studies. For example,
now a days, to calculate the D.A., 12
months average of pay and a set index
level is considered to get the percentage
increase in price/cost of living. Dearness
Allowance is paid on a range of base-pay
levels. At the time of revision of the pay
scale, the
Pay
Commission
always
merged D.A. with the new pay band.
Thus, the rising cost affects the daily
wager too. So, we are of the view that the
daily-wagers,
who
are
getting
the
minimum pay scale, are also entitled for
getting the dearness allowances only.
Except
it,
no
other
allowance
or
increment is allowable to them as
observed by Hon'ble Apex Court (supra).

21. In view of above, to meet the
inflation,
dearness
allowance
is
admissible to daily wagers who are
getting minimum of the pay scale
admissible to them. To this effect, the
order passed by the learned Single Judge
in Writ Petition No.1500 (S/S) of 2009 is
modified to this extent. In other special
appeals, orders passed by the learned
Single Judge are hereby sustained along
with the reasons mentioned therein and
the special appeals filed by the State are
hereby dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.04.2013

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Second Appeal No. 344 of 2013

Ram Das Singh and Anr Appellants
Versus
Duli Chand ...Appellants/Plantiff

Counsel for the Defendants:
Sri Ashok Mehta
Sri Pradeep Singh Sisodia

Counsel for the Appellants:
Sri Raj Kumar

Code of Civil Procedure, Section 100-second
Appeal-additional evidence photostate copy
of map-alleged to prepared by Lekhpalwhether
admissible
in
evidence-being
secondary
evidence?-held-'No'
unless
execution of original document proved
Secondary evidence-not admissible-lower
appellate Court without considering these
aspect-held-otherwise without any basis-
1 All Ram Kishore And Ors. Vs. State of U.P. & Ors.
477
complete ignorance of aforesaid procedureorder set a side.

Held: Para-23
Next is the question that even when a
secondary evidence is admitted, unless a
formal proof thereof is dispensed with
under any provision of statute, such a
document has to be proved otherwise
also it is not admissible. In the present
case,
Lower
Appellate
Court
while
entertaining
Xerox
copy
of
alleged
revenue map has completely ignored all
the aforesaid procedure. Though it has
admitted additional evidence at the
stage of appeal but without satisfying
requirement of law with regard to
admission of secondary evidence as also
its proof. Such document could not have
been read in evidence.
Case Law discussed:
AIR 1935 PC 125; 30 IA 44; 7 CWN 849;
(2007) 5 SCC 730; AIR 1975 SC 1748; AIR
2002 P & H 342; JT 2002(2) SC 163; AIR 2004
AP 439

(Delivered by Hon'ble Hon'ble Sudhir
Agarwal, J)

1. Heard Sri Ashok Mehta, learned
counsel for the appellants and Sri Raj
Kumar, Advocate for the respondents.
Since all the parties are represented,
hence as requested and agreed, I proceed
to decide this appeal finally at this stage.

2. The substantial question of law,
which has arisen in this case is:

A. Whether Lower Appellate Court
was justified in admitting a document
namely paper no.7C/5, photocopy of a
map, alleged to have been prepared by
Lekhpal of Village Hindalpur having
complied with requirement of Section
65/66 of Indian Evidence Act, 1872.

3. Before Trial Court, aforesaid
document was neither sought to be relied
by plaintiff nor there was any occasion for
it to look into the aforesaid document.
The suit was dismissed by Trial Court
vide judgment dated 21st July, 2011
deciding issues no.2 and 3 against
plaintiff and issue no.1 in favour of
defendants-appellants.
However,
the
aforesaid judgment and decree of Trial
Court has been reversed by Lower
Appellate Court vide judgment and decree
dated 16th January, 2003 passed by lower
Appellate Court i.e. Additional District
Judge, Court No.1, Ghaziabad, which is
impugned in this appeal.

4. Lower Appellate Court has
proceeded in a strange manner. On one
hand, in para 19, it has discussed that
Trial Court has not considered paper
no.109-C. If the aforesaid document was
not admissible in evidence, even then
findings ought to have been recorded by
Trial Court in this regard but it had failed
in both the ways that neither it has
considered the said document nor it has
discussed
and
held
that
aforesaid
document was not admissible in evidence.
Having said so, Lower Appellate Court
itself has not discussed and considered
aforesaid document and its consequence
on the dispute in case but proceeded to
look into a new document namely paper
no.7-C/5 which was an alleged revenue
map
of
Village
Hindalpur
and
a
photocopy thereof was produced. Lower
Appellate Court has held that since
primary evidence was not adduced, the
aforesaid document, as a secondary
evidence, was admissible and in this
regard has observed that plaintiff sought
to obtain a certified copy of the aforesaid
documents from revenue records but the
same was not supplied by concerned
authorities. The plaintiff also submitted an
478 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
application no.105-C before Trial Court
requesting it to summon the aforesaid
revenue map from the concerned Lekhpal
but the application was rejected by Trial
Court by order dated 11.2.2011. It is in
these circumstances, plaintiff-respondent
adduced copy of aforesaid map in the
form of a photocopy/ Xerox copy and the
same was admissible being a secondary
evidence under Section 65 read with
Section 66 of Indian Evidence Act, 1872
(hereinafter referred to as "Act, 1872").

5. The question, whether Lower
Appellate Court was justified in admitting
aforesaid secondary evidence or not,
inasmuch as, in paras 20 and 21, the
aforesaid document itself has been held to
be foundation for recording findings of
reversal and in case such document as
secondary evidence was inadmissible,
entire edifies of judgment of lower
appellate court would fall.

6. Learned counsel for the plaintiffrespondent stated that document in
question comes within the ambit of
Section 65(c) of Act, 1872. Section 65 of
Act, 1872 read as under:

Section 65 - Cases in which
secondary evidence relating to documents
may be given.- 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 original consists 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.

In cases (a), (c) and (d), any
secondary evidence of the contents of the
document is admissible.

In case (b), the written admission is
admissible.

In case (e) or (f), a certified copy of
the document, but no other kind of
secondary evidence, is admissible.

In case (g), evidence may be given as
to the general result of the documents by
1 All Ram Das Singh and another Vs. Duli Chand
479
any person who has examined them, and
who is skilled in the examination of such
documents.

7. However, I find no force in the
submission. It is alleged that map in
question is a revenue map prepared under
the provisions of U.P. Land Revenue Act,
1901 (hereinafter referred to as "Act,
1901"). Such a document would qualify to
be a "public document" within the
meaning of Section 74 of Act, 1872 which
reads as under:

"Public documents.- The following
documents are Public documents :-

(1) documents forming the acts, or
records of the acts--

(i) of the sovereign authority,

(ii) of official bodies and tribunals,
and

(iii) of public officers, legislative,
judicial and executive of any part of India
or of the Commonwealth, or of a foreign
country;

(2) Public records kept in any State
of private documents."

8. Considering the map prepared for
revenue purposes Privy Council in
Tarakdas Acharjee Choudhury and Ors.
Vs. Secretary of State & Ors. AIR 1935
PC 125 followed earlier decisions in
Jagadindra Vs. Secretary of State, 30 IA
44 and Abdul Hamid Vs. Kiran Ch, 7
CWN 849 observed that maps and
surveys for revenue purposes, are official
documents
prepared
by
competent
persons, and with such publicity and
notice to persons interested, as to be
admissible and contain valuable evidence
of the state of things at the time they are
made. They are not conclusive and may
be shown to be wrong but in absence of
evidence to the contrary, they may be
judicially received in evidence as correct
when made. The map prepared under the
authority
of
Government,
therefore,
would qualify the definition of "public
document" under Section 74 of Act, 1872.

9. That being so, vide Section 65(e)
read with subsequent clarification, no
other kind of secondary evidence except
certified copy of document could have
been admissible.

10. Admittedly, in the case in hand,
document in question was not a certified
copy of the revenue map prepared by
revenue authorities under relevant statute
so as to qualify to be a public document
under Section 74 of Act, 1872, in respect
whereto it could have been admissible as
a secondary evidence vide Section 65(e)
of Act, 1872. In the case in hand, it is a
Xerox copy of an alleged revenue map,
which was not a certified copy. What a
secondary evidence would be, has been
noticed in Section 63 of Act, 1872, which
reads as under:

"Secondary evidence - Secondary
evidence means and includes -

(1) certified copies given under the
provisions hereinafter contained;

(2) copies made from the original by
mechanical
processes
which
in
themselves ensure the accuracy of the
copy and copies compared with such
copies;

(3) copies made from or compared
with the original;

(4) counterparts of documents as
against the parties who did not execute
them;

(5) oral accounts of the contents of a
document given by some person who has
himself seen it.
480 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

11. It has not been explained
anywhere that Xerox copy of alleged
revenue map was prepared and obtained
by plaintiff-respondent so as to qualify to
be a secondary evidence as stated in
Section 63. In Smt. J.Yashoda Vs. Smt.
K.Shobha Rani, (2007) 5 SCC 730, the
Court has held that Section 63 is
exhaustive in so far as it declares
secondary evidence for the purpose of
Act, 1872. The Court says:

" The definition in Section 63 is
exhaustive as the Section declares that
secondary evidence "means and includes"
and then follow the five kinds of
secondary evidence."

12. It further observed that secondary
evidence, as a general rule is admissible only
in the absence of primary evidence. If the
original itself is found to be inadmissible
through failure of the party, who files it to
prove it to be valid, the same party is not
entitled to introduce secondary evidence of
its contents. Essentially, secondary evidence
is an evidence which may be given in the
absence of that better evidence which law
requires to be given first, when a proper
explanation of its absence is given. The rule
which is the most universal, namely that the
best evidence the nature of the case will
admit, shall be produced, decides this
objection that rule only means, that, so long
as the higher or superior evidence is within
one's possession or may be reached by him,
he shall give, no inferior proof in relation to
it.

13. Then referring to Section 65, the
Court said that it deals with the proof of the
contents of the document tendered in
evidence. 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. Under
Section 64, documents are to be provided
by primary evidence. Section 65, however,
permits secondary evidence to be given for
the existence, condition or contents of
documents
under
the
circumstances
mentioned. The conditions laid down in the
said Section must be fulfilled before
secondary evidence can be admitted.
Secondary evidence of the contents of a
document cannot be admitted without nonproduction of the original being first
accounted for in such a manner as to bring it
within one or other of the cases provided for
in the Section.

14. In Ashok Dulichand Vs.
Madahavla Dube & Anr., AIR 1975 SC
1748, the Court considered Section 65(a)
of Act, 1872 and said:

"....Secondary
evidence
may
be
given of the existence, condition or
contents of a document when the original
is shown or appears to be in 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 of any person
legally bound to produce it, and when,
after the notice mentioned in Section 66
such person does not produce it."

15. The Court thereafter declined to
admit secondary evidence by observing:

"....It was however, nowhere stated in
the affidavit that the original document of
which the Photostat copy had been filed by
the appellant was in the possession of
Respondent No. 1. There was also no other
material on the record to indicate the original
document was in the possession of
respondent No. 1. The appellant further
1 All Ram Das Singh and another Vs. Duli Chand
481
failed to explain as to what were the
circumstances under which the Photostat
copy was prepared and who was in
possession of the original document at the
time its photograph was taken."

16. In P.K.Gupta Vs. Varinder
Sharma, AIR 2002 P & H 342, with
reference to Section 65(c) of Act, 1872,
the Court said that secondary evidence of
existence, condition or contents of a
document can also be adduced when the
party offering evidence of its contents
cannot produce the original in reasonable
time. But such a delay in production of
the document should not have arisen from
the fault or neglect of the party who wish
to adduce secondary evidence of the
document. The Court also said:

"...To succeed in getting permission
to adduce secondary evidence it must be
shown that the document was in existence
which was capable of being proved by
secondary evidence and secondly proper
foundation must be laid to establish the
right to adduce secondary evidence."

17.

The
principle
underlying
secondary evidence is well known with
regard to proof of facts that best evidence
must come before the Court. The best
evidence, which, of course, is the original
document would furnish an opportunity to
the Court to examine various surrounding
facts attached with the original alone like
the voraciousness of the signatures of the
parties, the age of the document and other
host of factors depending on the facts of
each case. It is in absence of the best
evidence, the secondary evidence is
permitted to be adduced. The objective
being judicial investigation by Court to
fathom the truth. It is for this reason that
the law although insists upon production
of the best evidence i.e. the original
document yet it permit with proper
safeguards
production
of
secondary
evidence of the original if certain
conditions are satisfied, namely, the
existence of the document which might
have been lost or destroyed or the party in
whose possession the original is shown or
appears to be have refused to produce it
before the Court despite notice or its
existence, condition or contents have been
proved to be admitted in writing so on and
so forth. The rule regarding secondary
evidence is not an open rule allowing any
piece of photostat copies or an oral
account of the original and the likewise to
be tendered as secondary evidence.

18. In T.Mohan Vs. Kannammal &
Anr., JT 2002 (2) SC 163, the Court held
that secondary evidence could be received
as genuine if the existence of the
document is admitted.

19. In K. Krishna Appala Naidu Vs.
B. Sohanlal & Ors., AIR 2004 AP 439, in
the context of Section 65 and 66 of Act,
1872, the Court said that principle that as
long as the original exists and is available,
it being the best evidence, must be
produced, is engrafted in the Section. The
secondary evidence is admissible only in
the absence of primary evidence. The
Section
provides
for an
alternative
method
of
proving
contents
of
a
document, which for various reasons,
cannot be produced in evidence. Where
original document is in existence, but not
produced,
secondary
evidence
by
production of copies is not admissible
unless conditions are satisfied. The
provision has been designed to provide
protection to persons who, in spite of their
best efforts, are unable to, for the
circumstances beyond their control, to
place before the Court, primary evidence
482 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
of a document as required by law.
Secondary evidence should not and
cannot
be
allowed
unless
the
circumstances exist to justify as provided
under Act, 1872. Further, if the document
is to be admitted in secondary evidence,
the facts thereof have to be proved. The
certified copy of the original can be
treated as secondary evidence. But the
contents of the documents sought to be
marked as secondary evidence cannot be
admitted in evidence without production
of the original document. Under no
circumstances can secondary evidence be
admitted as a substitute for inadmissible
primary evidence.

20. Under what circumstances the
secondary evidence relating to document
must be proved by primary evidence is an
exception to the cases falling under
Sections 65 and 66 of Act, 1872. The
person seeking to produce secondary
evidence relating to a document can do so
only when the document is not in his
possession. To enable a person to take
recourse to Sections 65 and 66 of Act,
1872, it would be necessary to establish
that the document sought to be summoned
was executed and that the said document
is not with him, but in possession of the
person against whom the application is
made to be produced for proving against
him.

21. In the present case, it does not
appear that Court below cared to observe,
follow and comply conditions precedent
before entertaining secondary evidence
and that too making the foundation to
record a finding crucial to decide the
entire plaint case in a particular manner
i.e. in favour of plaintiff. It has not been
stated anywhere and atleast nothing is
available from record as to how and when
plaintiff had any occasion to obtain a
photostat copy of revenue map, who
allowed him to obtain it and wherefrom
he got it. There was nothing to prove its
authenticity also but the Court below, in a
very indiscreet manner, has admitted and
believed the said document, to record a
finding on a substantial disputed fact, so
as to form inference in a particular way.

22. There is one more aspect that
whenever a secondary evidence is to be
admitted, very existence of such a
document has to be established.

23. Next is the question that even
when a secondary evidence is admitted,
unless a formal proof thereof is dispensed
with under any provision of statute, such a
document has to be proved otherwise also
it is not admissible. In the present case,
Lower Appellate Court while entertaining
Xerox copy of alleged revenue map has
completely ignored all the aforesaid
procedure.
Though
it
has
admitted
additional evidence at the stage of appeal
but without satisfying requirement of law
with regard to admission of secondary
evidence as also its proof. Such document
could not have been read in evidence.

24. In view of above, I find it
difficult to sustain judgment and decree of
Lower Appellate Court founded on a
document i.e. paper no.7C/5.

25. The appeal is allowed. The
appellate judgment dated 16th January,
2013 is set aside. The matter is remanded
to Lower Appellate Court to decide
appeal after excluding document filed as
paper no. 7C/5 or unless parties satisfy
requirement of Sections 65 and 66 in
respect to aforesaid document, afresh, in
accordance with law.
1 All Ram Das Singh and another Vs. Duli Chand
483
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.04.2013

BEFORE
THE HON'BLE RAKESH TIWARI, J.
HON'BLE ANIL KUMAR SHARMA, J.

First Appeal From Order No. 873 of 2013

Amrik Singh

...Petitioner
Versus
M/S Bal Ji Rice Mills and Ors...Respondents

Counsel for the Petitioner:
Sri B.B. Paul; Sri A.P. Paul

Counsel for the Respondents:
-----
Code of Civil Procedure.- Order 43 Rule
1(r) Appeal against order passed under
Order XXXIX rule 3-issue notice on
injunction
Application-held-not
appealable-appeal dismissed on ground
of maintainability.

Held: Para-9
Therefore,
in
view
of
the
legal
proposition referred to above, we hold
that the impugned order is an order
under Rule 3 of Order 39 C.P.C. and no
appeal lies against that order under
Order 43, Rule 1(r) of the Code of Civil
Procedure.

Case Law discussed:
AIR (88) 1951 Allahabd 8.

(Delivered by Hon'ble Anil Kumar Sharma, J.)

F.A.F.O. No. 873 of 2013
Amrik Singh

Versus

M/s Bala Ji Rice Mills, Bandda, Road,
Khutar,
Tehsil
Puwayan,
District
Shahjahanpur (U.P.) through its partner
Rakesh Kumar Sharma and others

Counsel for the appellant: Sri B. B. Paul

CORAM:
Hon'ble Rakesh Tiwari, J.
Hon'ble Anil Kumar Sharma, J.

1. This appeal challenges the order
dated 8.3.2013 passed by Civil Judge
(Senior Divison) Shahajahanpur in O. S.
no. 222 of 2013, whereby instead of
granting exparte ad interim, notices have
been
issued
to
the
defendantsrespondents. The impugned order reads as
under:

" 8-3-2013

izkFkZuk i= 8x e; 'kiFk i= 9x ij oknh ds
fo}ku vf/koDrk dks ,di{kh; :i ls lqukA

oknh dh izkFkZuk gS fd vLFkk;h fu"ks/kkKk bl
vk'k; dh tkjh dh tkos fd izfroknhx.k fey esllZ
ckyk th jkbl fey dh rFkk mldk leLr e'khus
Hkou vkfn dh fcdzh lafonk vkfn djus ls okn ds
yEcu dky esa ckt jgsA

oknh ds o}ku vf/koDrk dks lqukA pwafd
nkf[ky vfHkys[kh; lk{; ls oknh dk ,d{kh; :i ls
izFke n`"V;k ekeyk curk izrhr ugha gks jgk gS ftl
dkj.k izfroknh x.k dks Hkh lquk tkuk vko';d gSaA

vkns'k

01& izfroknhx.k dks uksfVl tkjh gksA oknh
vko';d iSjoh djsA

02& i=koyh izkFkZuki= 8x ij lquokbZ gsrq
fnukad 19-03-2013 dks is'k gksA "

2. Learned counsel for the appellant
has vehemently argued that through the
impugned order the learned trial court
without discussing the facts of the case
and evidence adduced by the plaintiff has