Evidence Law

Marwari Kumhar v. Bhagwanpuri Guru Ganeshpuri

AIR 2000 SC 2629; (2000) 6 SCC 735

Facts

The Marwari Kumhar community used a temple and dharamshala for religious functions.
Ganeshpuri served as the pujari of the temple.
After his death, his wife and son began asserting ownership over the property.
The community had earlier filed a representative suit for declaration of title.
That litigation ultimately ended in a 1948 High Court decision holding that:
title belonged to the community;
Ganeshpuri and his family were only pujaris.
When the respondents again asserted ownership, the community filed a later suit for possession.
The community stated that:
original papers from the earlier litigation were lost;
the certified copy earlier obtained had also been lost;
only an ordinary copy of the earlier judgment remained.
A certified copy of the earlier decree was produced.
The respondents did not seriously deny:
the existence of the earlier litigation;
that they were parties to it;
that the ordinary copy correctly reproduced the judgment.
The appellate courts nevertheless refused to look at the ordinary copy.
They reasoned that because a judgment is a public document, only a certified copy could be admitted.

Whether an ordinary copy of a public document could be admitted where the original and certified copy were lost.
Whether the categories of secondary evidence under Section 65 operate independently.
Whether the earlier judgment had been sufficiently proved.

Primary evidence is ordinarily the best evidence of a document.
Secondary evidence may be given only where statutory foundational conditions are established.
Under Section 65(c) of the Evidence Act, secondary evidence is admissible where:
the original has been destroyed or lost;
non-production does not result from the party’s default or neglect.
Under Sections 65(e) and (f), a certified copy is ordinarily the permitted secondary evidence of a public document.
These categories are not necessarily mutually exclusive.
A public document may also fall within the independent lost-document category.
Where Section 65(c) is satisfied, other legally recognised forms of secondary evidence may be admissible even though the original was a public document.
Under the BSA, the same broad principles are contained in the provisions governing primary and secondary documentary evidence.

The lower courts treated the rule concerning certified copies as absolute.
They failed to examine whether the case independently fell under loss of the original.
The community’s evidence that:
the court record no longer contained the original;
the previously obtained certified copy was lost, had not been disbelieved.
That satisfied the foundational requirement for secondary evidence.
Section 65(c) did not cease to operate merely because the original judgment was a public document.
The ordinary copy therefore became admissible once loss was proved.
There were additional safeguards supporting reliability:
a certified copy of the decree was on record;
the respondents admitted the earlier litigation;
they did not claim that the ordinary copy was inaccurate;
they had contested the earlier suit;
the son had been properly represented while a minor.
The dispute was therefore not about whether a judgment existed or whether the copy was fabricated.
The respondents mainly argued that the decision was not binding.
Excluding the copy on a formal technicality would ignore an adjudication whose existence and result were substantially undisputed.
The Court emphasised that secondary evidence does not become admissible merely because a copy is produced.
The party must first establish:
existence of the original;
execution or authenticity;
a statutory reason for its non-production.
Those conditions were satisfied here.

The Supreme Court held that the ordinary copy of the earlier judgment was admissible under Section 65(c).
Loss of the original and certified copy had been satisfactorily established.
The public-document clauses did not exclude the independent operation of the lost-document clause.
The earlier judgment bound the respondents and established the community’s title.
The orders dismissing the community’s suit were set aside.