Evidence

Punjab Law Reporter

Evidence - Allowing production of Photostat copy in evidence does not amount to its proof. Its probative value has to be proved and assessed independently. It has to be shown that it was made from original at particular place and time.
Evidence - Additional evidence - Application dismissed by trial Court - Trial Court shall scrutinize the documents which are certified copies of the public documents and are relevant and admissible under Section 77 of the Indian Evidence Act - It will be the discretion of the trial court to permit the certified copies of the public documents falling under the definition of Section 77 of the Indian Evidence Act to be tendered by the plaintiff - If the defendants respondents seek to rebut the same, an opportunity may be given by the trial Court in that regard as well - It will be open to the trial Court to consider the admissibility, relevancy, mode of proof and the nature and authenticity of the documents sought to be tendered as per the provisions of Section 77 of the Indian Evidence Act. (179) PLR
Evidence - Additional evidence - At the stage of rebuttal and arguments - Will - Evidence sought to be produced is in the form of oral evidence by producing son to prove the signatures of his father who alleged to have attested the Will and also by producing on record the report and examining the Handwriting and Fingerprint Expert to prove signatures - Could have been done by defendant at the time of leading her evidence in affirmative or if she was so aggrieved, could have challenged the order of closure of her evidence by way of revision to avail an opportunity for leading the said oral evidence but in any case, keeping in view the facts and circumstances of the present case, such kind of oral evidence cannot be allowed to be lead by way of additional evidence especially when the case was fixed for pronouncement of order. (178) PLR
Evidence - Additional evidence - Even if, evidence of the plaintiffs was closed by order of the Court, since these revenue documents, being in the nature of public documents, are per se admissible in evidence, opportunity should have to be given to produce these documents before closure of their evidence. (180) PLR
Evidence - Additional evidence - Issue is precisely as to whether a party can be allowed to lead additional evidence to cover up his negligence or lacunae at the stage of arguments in the name of advancement of cause of justice, otherwise detrimental to the interest of the defendant - Witness was available throughout the pro ceedings and could have been examined by the plaintiff to prove entries recorded by him in the account books but the plaintiff chose not to examine him - Application has rightly been dismissed by the Court below. (178) PLR
Evidence - Additional evidence - No doubt, two witnesses to prove attestation of the Will by the two attesting witnesses have been examined by the petitioner-defendant but signatures of the executant of the Will is also to be proved - Is sought to be examined by the petitioner-defendant to prove signatures of the testator of the stated Will - This witness is thus, necessary for complete and effective adjudication. (176) PLR
Evidence - Additional evidence - Permission to file family agreement by summoning witness - That was impleaded later - Entire evidence by the plaintiff was led thereafter - Since entire evidence by the plaintiff was led thereafter, question of re-opening the case by granting more opportunity to the plaintiff for its evidence due to impleadment of respondent No.3, therefore, does not arise. (173) PLR
Evidence - Additional Evidence - Petitioners have impleaded subsequently, though they have examined the witnesses from the office of Sub Registrar, but the fact remains that sale deed cannot be said to be proved until and unless the witnesses of the same are examined - G.K. has died - LRs have to be examined who have appeared and proved the sale deed by acknowledging the signatures of the deceased - Legal right of a party cannot be taken aback as the matter, was listed for the defendants' evidence and the petitioners could not be non-suited on this ground. (182) PLR
Evidence - Additional Evidence - Plaintiff was trying to bring a witness to power of attorney as an additional witness after the plaintiff's side was closed and the defendant's side was also closed and the matter was posted for arguments - Here is a case where there has been utter laches on the part of the plaintiff and if he had taken steps to summon a witness that was also served and the plaintiff chooses to close his evidence then it must be understood that he was not interested in following it up and secure the presence of the witness to whom summon was issued - Order dismissing application - Upheld. (179) PLR
Evidence - Additional evidence - Plaintiffs evidence was closed by Court order - Application was filed at the stage of rebuttal evidence and arguments - Pedigree table in the record of the Patwari is public document - Consequently, its certified copy is per-se admissible in evidence and is not required to be formally proved - In these circumstances, if document mark PA is certified copy of the pedigree table, the same has to be admitted in evidence being per-se admissible - However, if the said document is not certified copy of the pedigree table, the plaintiffs should be permitted to produce certified copy of the pedigree table by way of additional evidence on payment of costs. (173) PLR 5
Evidence - Additional evidence - Settled principle of law that if something remains obscure can be filled by way of additional evidence - The requirement is only to see that the evidence proposed to be adduced should be such that will facilitate the Court to pronounce the judgment in an effective manner - In the interest of justice something which remains obscure should be filled and brought on record so as to enable the Court to pronounce the verdict in more satisfactory manner. (182) PLR
Evidence - Additional evidence - When evidence is essential, there is no bar qua its reception at any stage even if the stage is of conclusion of arguments. (176) PLR
Evidence - Additional evidence that the petitioner wants to produce the report as marked document only is no ground to allow additional evidence - When the production of the report of the Handwriting and Finger-prints Expert is not per se admissible and the petitioner is not asking for examination of the Hand-writing and Finger-prints Expert - Court justified in refusing the additional evidence. (178) PLR
Evidence - Admissibility of document - Court has adopted the procedure and reserved the issue of admissibility of the document to be decided at the time of judgment - Petitioner brings the document which was admitted in evidence and points out that the document is a copy of a document filed in Court and according to him, the document would fail to qualify as secondary evidence in terms of Section 62 of the Evidence Act - That objection is always available for him at the time of arguments - The Court shall render an adjudication on the relevance and its admissibility. (173) PLR
Evidence - Admission - Admission are relevant to what they state but are never conclusive - The manner of explaining an admission must be convincing to relieve the party from the effect of such admission - Evidence Act, 1872 (1 of 1872) S. 23. (174) PLR
Evidence - Application for recalling the witnesses of the respondent-landlord for cross-examination - Dismissed - Case that what the petitioner did was to deposit cheques in the account of the landlord and then very conveniently stopped the payment - If the agreement to sell had been executed and if the respondent had presented the cheques and the same had been cleared, the petitioner's claim would have become much stronger because he would have then morphed from being a tenant in possession to being an intended vendee in possession and that would have displaced the whole case of the landlord - Order upheld. (183) PLR
Evidence - Army Regulation, Regulation 592 - Primary evidence of the cause of discharge having been destroyed, the Long Rolls is not conclusive to return a finding that the discharge of Armed Forces personnel was either attributable or aggravated by military service - It is entry made from another document though made in regular course of working but the same is not primary evidence - It cannot be treated to be secondary evidence as it is only an abstract and cannot lead to conclusive opinion for the reason of discharged. (176) PLR
Evidence - At the stage when the assessment of rent was taking place before the Rent Controller, the applicant-petitioner placed on record the photostat copies of the receipts and not the original receipts before the Court - No reason as to why the original receipts were not produced at that stage has come forth - Nothing on record that photostat copy were compared with original - Petitioner did not even annex his duly sworn affidavit along with the application to prove the existence of the document - Evidence rightly rejected. (182) PLR
Evidence - Burden of proof - Promissory note - A material alteration vitiates the document and if there is a plea that there is a recital in the promissory note which has been materially altered, the burden is only on the plaintiff and it is never on the defendant - So long as there was no concurrence that alteration in date was in consent - The effect of instrument was rendered void, will place the burden of proof only on plaintiff and not on defendant. (179) PLR
Evidence - Compromise-Mark D is purported to be executed during pendency of suit and that too after the petitioner had already adduced his entire evidence - The Court is empowered to take into account the subsequent events - As the respondent has denied the compromise- Mark D put to him during cross-examination, the only course open to the petitioner to prove the compromise either by examining a witness thereto or on the basis of an opinion by an expert after comparison of signatures on the compromise with his (respondent's) admitted signatures on the agreement to sell. (183) PLR
Evidence - Counsel gave an undertaking that they will conclude the entire evidence on the next date of hearing at their own responsibility - Here, to me, the trial Court appears to have slipped into a deep legal error in this relevant connection - That ipso facto is not a ground to debar them to produce their entire evidence where their valuable rights in the property are involved - Defendants have already deposited the process fee and diet money for summoning the official witnesses - Order set aside. (175) PLR
Evidence - Court shall see to it as to whether diet money and process fee of the official witness have been furnished and if that is so, in that event, the summons be issued to the official witness and in case, he does not cause appearance after accepting summons, he be coerced to appear before it for deposition by way of issuance bailable or non-bailable warrants, as the case may be - Petitioner shall also take dasti summons for effective services upon this witness, in terms of Order 16, Rule 7-A, Civil Procedure Code, 1908 (V of 1908). (175) PLR
Evidence - Court will not be able to dictate what evidence is sufficient so long as such evidence is relevant - In a case where the Court has framed an issue relating to forged character of the document and placed whether correctly or wrongly burden of proof on the defendant to that extent, the plaintiff certainly is entitled to bring rebuttal evidence - Evidence which is now permitted to be given through an expert will be given as an additional evidence and if the defendant still wants to give any more evidence with reference to such evidence otherwise through any expert, he will be entitled to do so. (183) PLR
Evidence - Cross-examination - Suggestion in the cross examination is a rule of justice prudence and to apprise an adversary of the defence and to prevent a surprise at the trial when it was its own turn to offer or evidence of it was contending. (176) PLR
Evidence - Cross-examination - Witness living abroad - If witness is in foreign country, advancements in communication technology make possible for the Courts to avail of the facility of examination through video conferencing - The care that should be taken is that the presence of a party as a witness in foreign country must be in a secure place and that the questions posed and answers to be elicited shall be done without any props or devices to respond which will undermine the integrity of the deposition - The plaintiff is at liberty to approach for assistance of the Indian Consulate in the foreign country and seek for permission for any secure place for giving evidence at a pre-determined time, which shall be the Court hours. (179) PLR
Evidence - Cross-examination was deferred on request of the counsel for the defendant, the petitioner before this Court, and the witness was bound down to appear in the witness box - Three dates were taken for plaintiffs evidence - No PW was present - Order was passed debarring the defendant cross-examination - Plaintiff conduct post impugned order deserves to be factored in to balance the competing interests justly and equitably so as not infringe each others rights to a fair trial - If the evidence of the two PWs is left undisturbed it would put the petitioner-defendant to unmerited disadvantage which could never be compensated. (176) PLR
Evidence - Denial of the signatures by the appellant-defendant on the cheque also cannot be accepted as the respondent-plaintiff has been able to prove on the basis of the evidence and in fact, admission that the cheque book and cheque leaf were of the account of the appellant-defendant - Since the appellant-defendant had denied his signatures, the onus was on him to prove that the cheque did not bear his signature. (180) PLR
Evidence - DNA - Evidence is admissible when it is relevant to the fact in issue and is not otherwise excluded by statute or the High Court Rules and Orders - Evidence is relevant when it has such a relation to the fact in issue as to induce belief in its existence or non-existence - Section 45 which governs the admissibility of expert testimony, provides that the opinion of a witness on a matter requiring special knowledge, skill, experience or training which he is shown to possess can be received in evidence - The section does not pose any legal obstacle to the admissibility of DNA analysis as an evidence - DNA analysis is admissible as evidence even on collateral matters when it tends in any reasonable degree to establish the probability or improbability of the fact in issue as per provisions of the Evidence Act 1872 (1 of 1872). (174) PLR
Evidence - DNA analysis - DNA Test is a scientific test and its accuracy is 99.99% - In assessing the probative value of DNA evidence, court would consider, among other things, the following data: how the samples were collected, how they were handled, the possibility of contamination of the samples, the procedure followed in analyzing the samples, whether the proper standards and procedures were followed in conducting the tests, and the qualification of the analyst who conducted the tests - There is no longer any question on the validity of the use of DNA analysis as evidence - The Courts are now moving from the issue of according "official recognition" to DNA analysis as evidence to the issue of observance of procedures in conducting DNA analysis. (174) PLR
Evidence - Document which was signed by the respondent should have been got exhibited in her cross-examination after she admitted it to be correct. (180) PLR
Evidence - Documents have been only tendered into evidence and not proved in accordance with law - A presumption is drawn to the aforementioned documents subject to their rebuttal which has not been rebutted by examining any witness from the revenue record. (182) PLR
Evidence - Driver of the vehicle in question the deceased was his son - Death by live electric wire - Newspaper report was there which reported the incident and employment of deceased with the respondent - Employment is not proved because a newspaper report is no evidence in the eyes of law for proving employment - Employees Compensation Act, 1923 (8 of 1923). (175) PLR (Del.)
Evidence - Earlier evidence was closed by orders - When a witness had filed affidavit, he submitted himself for cross-examination - Then it was the duty of the Court to grant opportunity to the plaintiff to allow for examination of the witness - If despite granting opportunity, the witness is not produced for cross-examination, only then, the Court has to pass the order to discard the evidence in examination-in-chief also - Affidavit already produced was not discarded. (182) PLR
Evidence - Examination in Chief of the plaintiff as a witness was recorded - Thereafter he played truant and never came forward for his cross-examination - Now, he has appointed his wife as his attorney, who wants to examine herself as attorney of the plaintiff as a substitute - Evidence of the plaintiff had been already closed - Without permission of the Court made examination-in-chief - In any way, she cannot be substituted for the plaintiff when he himself had appeared in the witness box and is now feeling shy off for his cross-examination. (178) PLR
Evidence - Exhibition of a document itself would not dispense with the mode of proof to prove a document - In the instant case, no doubt, the site plan (Ex.P1) was exhibited on record without any objection from the respondents, however, the appellants were supposed to prove the contents of the site plan by examining the draftsman who had prepared the said site plan. (174) PLR
Evidence - Expert witnesses - Need of hour is to control, regulate, certify, accredit and devise means for registering expert witnesses who appear in Courts - The Departments of Justice and Home Affairs of the respective States of Punjab, Haryana and Union Territory, Chandigarh are directed to delve deep in the field and come out with viable mechanism to facilitate the justice dispensation by remedying the prevalent maladies/handicaps in system. (174) PLR
Evidence - Handwriting Expert - Cannot be allowed to be examined in rebuttal - He also cannot be allowed to be examined by way of additional evidence, as this evidence was well within the knowledge of the petitioner, at the time when he was leading evidence in affirmative. (174) PLR
Evidence - Handwriting experts - Divergent opinions - Application moved by the petitioner-defendant for sending the pronote and receipt in dispute for comparison to the SFSL/CFSL is allowed - The trial Court can summon the SFSL/CFSL expert for comparison of the questioned documents i.e. pronote and receipt with standard writing/signature and to check alteration or addition or may direct the authorities of the Laboratory to inspect the pronote and receipt in Court and submit report. (174) PLR
Evidence - Hostile witness - An adverse answer in the cross-examination cannot be treated by the plaintiff as affording him to an opportunity to treat him as hostile - It is a case where after cross examination a witness is sought to be treated as hostile - The court simply had no power to treat him hostile at that time. (180) PLR
Evidence - In a suit for pre-emption, the plaintiffs have to establish the relationship of landlord and tenant - The plaintiffs have to stand on their own legs - The evidence of the defendants can be said to be corroborative in nature - In the absence of any positive proof of relationship of landlord and tenant, the filing of the ejectment petitions will not create a tenancy. (175) PLR
Evidence - In rebuttal by plaintiff - It is correct that plaintiffs ordinarily would have no right to lead evidence in rebuttal on an issue, onus whereof is on the plaintiffs themselves - In the instant case, however, defendant no. 1 has introduced the alleged affidavit at the stage of evidence, without mentioning the same in the pleadings - Consequently, at the stage of affirmative evidence, the plaintiffs could not have thought of examining the handwriting expert regarding alleged signatures of plaintiff no.1-petitioner on the said affidavit because the said affidavit is completely beyond pleadings - Plaintiff have right to examine the handwriting expert even in rebuttal evidence because defendant no. 1 has introduced the aforesaid affidavit beyond pleadings, at the stage of evidence. (173) PLR 5
Evidence - Incomplete copy of the document produced by the witness of the Government - Petitioner made an application before the trial Judge for production of the complete document but the application has been dis-allowed for the reason that the stage of the suit is at the fag end and recalling the witness for exhibiting the aforesaid two documents will amount to re-opening the case permitting the petitioner to fill up lacunas is impermissible - Order set aside - They deserve to be placed on record so that the judicial record is not left impure - It was the duty of the Government to produce full text of the documents and not in part. (175) PLR
Evidence - Issues were framed vide order dated 15.09.2014 and in the later part of order, the petitioner was directed to deposit the diet money and file the list of witnesses within 7 working days failing which no assistance will be given for summoning the witnesses will be provided by the Court - Case was adjourned to 05.10.2015 - In the meantime, learned counsel for the plaintiff/petitioner filed an application for summoning the above said witness for the date already fixed i.e. 05.10.2015 - Petitioner allowed to file list of his witnesses at this stage and examine clerk/official incharge of the office of Block Development and Panchayat officer. (180) PLR
Evidence - Mere exhibition of the document cannot be dispensed with its proof - Admitted position on record that plaintiffs have not examined any witness from the revenue department in tendering the documents, i.e., list of proprietors and jamabandies etc. - Thus, the authenticity of the document has not been proved. (182) PLR
Evidence - Mortgage - Attesting witness - Affidavit tendered in his examination-in-chief - But chosen not to produce him in the witness box for the purpose of cross-examination and was given up on the pretext that he has been won over - Course would have been to produce the said witness for cross-examination and in case he would have stated entirely against the interest of the plaintiff, then he could have been declared to be hostile and not in the manner in which his appearance for the cross-examination has been avoided. (176) PLR
Evidence - Negligence - If only documentary evidence should be the basis for courts to render decision, there is not even a need for allowing for oral evidence to be given - We require specific instances of negligence or lack of it to be brought by the appropriate supporting oral evidence that can stand the test of cross-examination - Motor Vehicles Act, 1988 (59 of 1988) S. 166. (182) PLR
Evidence - Non-cross examination of plaintiff may have serious repercussions and consequences for the petitioner - Keeping in view the principles of natural justice coupled with the fact that the petitioner should not be allowed to suffer for in-action on the part of her counsel in regard to his failure to cross-examine the witness despite several opportunities granted for the purpose, the petition is allowed, the petitioner is afforded only one opportunity to conclude cross-examination. (183) PLR
Evidence - Non-examination of the plaintiff - No doubt the plaintiff is required to step into the witness box so as to provide an opportunity to the other party to cross-examine and examination of the plaintiff is most vital part, but at the same time, this fact is to be kept in view that if by leading positive evidence by the plaintiff, he has been able to discharge his onus lawfully placed upon him, and, subject to the Court forming that opinion, a mere abstention of plaintiff himself from the witness box may pale into insignificance - Examination of plaintiff shall be relevant and essential but if the attorney holder is in a position to make the statement, even non-examination of the plaintiff himself cannot be fatal for version of the plaintiff. (183) PLR
Evidence - Official witness was summoned - Case was adjourned on account of not bringing the record - Only official witness is sought to be examined who will produce the necessary record to enable the Court to come to a just decision and determine the real controversy inter se the parties - Plaintiff was present all the time and she had not been cross examined and the record had not been brought by the official witness - A party cannot be benefitted only on account of some observations of the Court which had fixed a time schedule.(177) PLR
Evidence - Once the petitioner has summoned a witness through the process of the Court and has not defaulted in any manner whatsoever to facilitate his summoning, the petitioner cannot be condemned for his failure to examine such a witness by closing his evidence.(181) PLR
Evidence - Original bahis were produced on the date of filing of the suit and on the day of giving evidence and the counsel for the petitioner/defendant had also cross examined the witnesses after scrutinising the original account books - The signatures had been admitted by the defendant on all the entries and the true translated copies had been produced instead of certified copies of the originals which were subsequently tendered - That they were being tendered for the first time in rebuttal evidence thus is without any basis - Rebuttal evidence - Civil Procedure Code, 1908 (V of 1908). (177) PLR
Evidence - Parameters of evaluation of evidence by a Tribunal or by a criminal court or in a departmental inquiry are different - When in criminal cases, proof to nail a person is required beyond doubt and rather to the hilt, in cases before a Tribunal, evaluation of evidence is based on preponderance - In departmental inquiry though standard of proof is light as compared to proof required in criminal cases but proceedings of departmental inquiry are required to be consistently punctuated by the principles of natural justice, fair play and good conscience - Right of being heard though is uncodified but is of fundamental importance - It could not have been bye-passed by the respondents - Departmental inquiry was to precede passing of any order - Motor Vehicles Act, 1988 (59 of 1988) S. 166. (175) PLR
Evidence - Plaintiff had taken steps to summon a witness that was also served and the plaintiff chooses to close his evidence then it must be understood that he was not interested in following it up and secure the presence of the witness to whom summon was issued - Difficult to believe that the absence of witness who is summoned could go unnoticed by a counsel when he closed his evidence. (179) PLR
Evidence - Plaintiff witnesses were not available on the day when the case was posted for cross examination - The Court therefore closed the evidence and directed the defendant to bring his evidence - If the plaintiff however has any justification for not being able to produce evidence on the day which was fixed, he shall be at liberty to file an application for recall the witness whose evidence had remained incomplete setting out the reasons as to why the production of the witnesses was not possible on that day and if the Court finds adequate justification it may allow for the case to be re-opened and proceed with opportunity for cross examination to the defendant. (173) PLR 1)
Evidence - Production of documents - Tenant being examined - Suit for seeking decree of permanent injunction inter-alia restraining the defendants from replacing the shutter in the shop owned by the plaintiff - Merely because the witness has been called upon to produce few documents for his further cross examination, should not have tremorized the petitioner-tenant - Since the question of relationship of landlord and tenant between the present petitioner and plaintiff with some allied questions is involved, production of income tax and sales tax returns with partnership deed will be helpful in effective and wholesome adjudication of the matter in controversy. (179) PLR
Evidence - Pronote - That the same is not signed by him - It is the Court which is ultimate authority to decide with regard to the correctness or otherwise on the opinion of the expert witness - Mere opinions would not be a conclusive factor with regard to the signatures being that of the person to whom it is alleged - Duty is cast upon the Court to give a finding in this regard -Court can on his on its own compare the signatures and give findings thereon especially when four plaintiff witnesses have in unison stated in this case that the appellant-defendant had signed the pronote and the receipt in their presence. (180) PLR
Evidence - Rebuttal evidence - Even while holding that a right of rebuttal can never be a matter which could be exercised without reserving for such evidence, if the trial court had allowed for such an exercise, the prejudice that the petitioner can be put to could be neutralized by allowing for the petitioners an opportunity to offer their own rebuttal again if they so chooses - Now what the plaintiffs seek to prove will not seriously prejudice the petitioners at all if they have a liberty to offer their own evidence in the manner above(178) PLR
Evidence - Rebuttal evidence - Specific Performance of two different agreements to sell - Plaintiff has already closed his evidence wherein he examined one witness - Defendants in there evidence also examined the two attesting witnesses who have denied their signatures - Admittedly, there are six attesting witnesses - In exceptional cases, where the plaintiff is not negligent in leading his evidence in affirmative, can be permitted to lead evidence in rebuttal qua evidence, which otherwise cannot possibly be anticipated, so as to meet the ends of justice. (178) PLR
Evidence - Rebuttal evidence and additional evidence - There is clear difference between rebuttal evidence and additional evidence and the procedure thereof - Additional evidence is with respect to a fact which was not within the knowledge or which could not be known to the applicant inspite of due diligence, however, right to rebuttal is with respect to an issue which was already within the knowledge of the party and the party had reserved its right of rebuttal in that regard - The party cannot be permitted to lead evidence in rebuttal to fill in lacunas in its evidence. (182) PLR
Evidence - Recalling for further cross-examination of the witnesses - Respondent has been allowed to amend the written statement to raise the plea that mortgage deed basis of the suit is the result of fraud and misrepresentation etc. - As the respondent has been allowed amendment of the written statement that goes to the root of the case, the respondent would be well within her right to re-call the witnesses of the petitioner in order to cross-examine them qua plea of fraud and misrepresentation because in absence of the witnesses being confronted with the allegations raised in the written statement, it may cause serious prejudice to the respondent at the time of final disposal of the suit. (183) PLR
Evidence - Right of cross-examination by defendant of other defendant - The trial Court had to grant the opportunity and if he did not avail of the same - It had to be recorded that opportunity had been granted and there was no examination on his behalf - Defendant no. 2 deserves opportunity to cross-examine defendant no. 1, notwithstanding that defendant no. 1 in his examination-in-chief has denied the plaintiff's averment. (173) PLR 2
Evidence - Secondary evidence - Agreement came into existence after the filing of the written statement - Parties can be allowed to lead evidence in support of their pleadings - As there was no pleading qua<D> agreement - There was no question of allowing of application for leading secondary evidence - Was required to move an application for amendment of written statement on the basis of subsequent agreement - Thereafter, such an application for leading secondary evidence should have been filed. (183) PLR
Evidence - Secondary Evidence - Applicant-defendant has come with the plea that the original Will has been lost somewhere - Earlier the said Will was produced before the revenue authorities at the time of sanctioning of mutation - The applicant was well within his right to move application for leading secondary evidence to prove the said Will - Evidence Act, 1872 (1 of 1872) S. 65. (182) PLR
Evidence - Secondary evidence - Every minute detail is not required to be mentioned in the written statement - A party leading evidence will be at liberty to lead evidence according to its choice - Evidentiary value is to be seen by the trial court at the time of final decision of the case - Existence and loss of documents is concerned, the trial Court has recorded categoric finding that existence and loss of the documents in question are required to be proved by applicant-respondent No.1, only then the secondary evidence will be allowed to be led - Even the application for leading secondary evidence has been allowed by observing that application for leading secondary evidence is allowed, subject to prove of existence and loss of the documents in question. (173) PLR
Evidence - Secondary evidence - Have specifically alleged that in spite of their best efforts, they could not trace the original deed of family settlement, which has been lost - They have annexed its copy with the plaint - Therefore, once the plaintiffs have specifically pleaded in the plaint and have based their claim on the strength of pointed deed of family settlement, which was lost, in that eventuality, the production of secondary evidence to prove its copy is necessary to decide the real controversy between the parties and is legal requirement of fair trial. (175) PLR
Evidence - Secondary Evidence - Labour Court did not refer to the provisions of Section 65 of the Indian Evidence Act - In order to lead secondary evidence, the foremost requirement of law is to prove its existence - The Labour Court ought to have directed the petitioner to prove the existence of the documents and thereafter lead such evidence by way of secondary evidence - It could not have commented on the genuinity of the document by merely looking at the photocopiers. (179) PLR
Evidence - Secondary evidence - Suit for specific performance of agreement to sell - Record of the pending suit was lost and the case file had been reconstructed with the help of certified copies of the documents - Certified copy of the agreement to sell had also been exhibited in the reconstructed file - Later on it was discovered that said certified copy had been tampered with - The plaintiff had moved an application for initiating an enquiry - At the time of reconstruction of the case file taking extra precaution a separate set of case file was also ordered to be kept in the record room for safe custody - Merely because the Court has allowed the plaintiff to prove the agreement to sell from that second set of case file kept in record room by way of secondary evidence - Is not a ground for challenging the order. (177) PLR
Evidence - Secondary evidence - Two important events are required to be proved, i.e., existence and loss of the document - It is settled law that photocopy of the document cannot be permitted to be produced on record by way of secondary evidence - In case, the agreement had actually been entered into between the respondent-plaintiff and Jan Sewa Society, the respondent-plaintiff would be having the second copy or carbon copy of the same - Once the aforementioned agreement has not been found to be in existence, secondary evidence cannot be permitted. (182) PLR
Evidence - Striking off the documents produced by the petitioner in rebuttal evidence has been allowed - Plaintiff was well within his right to produce copies of jambandies and mutations which are authentic documents and most relevant for the just decision of the case and the same could be allowed in rebuttal evidence. (182) PLR
Evidence - Suit for recovery - Plea that the appellant always signs the documents in English and not in Punjabi, such as the power of attorney, written statement, reply to the application, affidavit and even the statement has been given in English language and, therefore, the signatures on the voucher which are in Punjabi, are not his, cannot be accepted as it is not disputed that there is a factionalism in the Gurdwara and it has been intentionally signed in English and, therefore, it can safely be said that the same have knowingly and intentionally been signed in English - In the vakalatnama as also the affidavit, which have been field in this appeal, the signatures of the appellant are in Punjabi. (180) PLR
Evidence - Tenant wants to conduct further cross-examination on the landlord - Tenant had been changing his counsel quite often and even during cross-examination of the landlord, the tenant had changed three counsel one after the other - It is now the fourth one engaged by him on whose advice he wants further cross-examination of the landlord to be effected, which cross-examination as has already been effected and had taken almost five years for the tenant to complete - The application is nothing but a delaying and dilating tactic - Application dismissed. (177) PLR
Evidence - Tendering affidavits in examination-in-chief and the original documents - Would not fall within the purview of the evidence as the cross-examination has been deferred - It would have been an altogether different matter if the opportunity had been given to the defendants to cross-examine the witnesses and after availing it, they had not cross-examined the witnesses. (178) PLR
Evidence - The case of the petitioner is that the title of the suit property lies with him but the building plans as discovered have been sanctioned in favour of the private defendants on the property of the petitioner - Application for production of rules and regulations governing the sanction of the building plans of the proposed construction - Trial Court for the reason that the application is a delaying tactic of the plaintiff to prolong the proceedings and moreover the case is fixed for rebuttal evidence and is an old one falling in Action Plan 2013-14 - Dismissed the application - The Municipal Corporation also cannot be heard to oppose such a prayer in order to cover up actions which may be lawful or unlawful only record and the rules and regulations can reveal - The Municipal Corporation should by itself have produced the record on the basis of which the building plans were sanctioned and not have sprung a surprise on the petitioner during cross-examination of its witness - Order set aside. (175) PLR
Evidence - There is no strict law that re-examination can be allowed only after completion of cross-examination - If in the midst of cross-examination, the court comes to the conclusion that some new point has emerged and some document though exhibited in examination-in-chief is incomplete or has been left out inadvertently either by the witness himself or due to lapse by the court itself, re-examination can follow even in the midst of cross-examination of a witness. (178) PLR
Evidence - When the defendants state that it is forged and fabricated, there is no burden on the defendants to bring that it is forged and fabricated - The moment the plea of forgery is brought, the plaintiff must take a lesson that this document which he is seeking for enforcement is put to test and that the burden is only on the plaintiff to establish the genuineness - An affirmative evidence must be given by the plaintiff himself that the document is genuine and if he so thought, he should have also examined the expert to prove the genuineness of the document - There is no right to rebut a statement given by the defendant that the document is not genuine when he has examined an expert. (181) PLR
Evidence - Whether admission made by defendants No.2 and 3 in favour of plaintiff binds defendants No.1 and 4 or not? - The admission made by a party may operate as an estoppel but not as a conclusive proof - Such an admission may be relieved and binding upon other party if they have community in interest i.e. common interest and was made prior to the controversy - Any such admission made during the controversy may not be binding on the other party. (182) PLR
Evidence - Will - In the suit filed specific challenge was made to the Wills - Onus to prove that the Wills are forged and fabricated is on him - FIR was got registered when the case was at the stage of filing of replication by the plaintiff - During investigation the Investigation Officer moved application for handing over the Will for examination by Forensic Science Laboratory - Allowed - Effort seems to be to shift the burden of proving that the Will is forged and fabricated on the prosecuting agency in the criminal case - It is nothing else but collection of evidence - Order set aside. (179) PLR
Evidence - Witness had been cross-examined thrice at length - Further cross-examination was deferred as it could not be completed before the lunch break and thereafter the Presiding Officer had to proceed on leave as was not available in the post lunch sitting - By closing the evidence of the plaintiff the defendants should not be deprived of their right to conclude cross-examination of the petitioner if they want to. (176) PLR
Evidence - Witness turned hostile during cross-examination - Matter was deferred "due to lunch" - Evidence closed - Plaintiff moved an application in the Court to formally close evidence and that he may be given an opportunity to conclude it - The application has been rejected - Remarks passed against counsel - Ordered deletion of all references made with regard to the learned counsel - Since witness has been cross-examined, his deposition till the end of his cross-examination based on the affidavit tendered by way of examination-in-chief has to be read in evidence or against the plaintiff. (175) PLR
Evidence Act, 1872 (1 of 1872) S. 3 - Merely because evidence is led by a party in a case, it is not necessary that Courts have to necessarily believe the evidence - There is a difference between evidence which is led and the weight which has to be attached to the evidence by the court - As per the definition of expression `proved' found in Section 3 of the Evidence Act, 1872 a fact is proved only when the Court after considering the matters before it believes the fact to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case to act upon the supposition that it exists. (175) PLR (Del.)