1. This appeal arises out of a suit instituted by Hira Lal, appellant, for recovery of Rs. 847 on the basis of a simple mortgage for Rs. 500. The plaintiff alleged that the security bond was executed by Dudh Nath mortgagor on 27th March 1924, but only a certified copy of the document was produced in Court. He accounted for the loss of the original deed by saying that be kept the mortgage deed in the pocket of his kurta and one night while it was left hanging on a peg in his bed room, the kurta as well as the deed were stolen. The plaintiff failed to satisfy the Courts below of the truth of this allegation. The defendants were the transferees from Dadb Nath, Only Behari Lal, defendant 4, contested the suit. He pleaded, inter alia, that the document was still in possession of the plaintiff audi it was not produced because there was an endorsement of payment on the back of it. It appears that in a previous suit, instituted by Behari Lal on the foot of a mortgage of the same property, one of the defendants, namely, Mt. Ram Kali, another secured creditor and a first cousin of the plaintiff, alleged that she discharged the plaintiff's mortgage and claimed that she was subrogated to the position of Hira Lal. She produced a receipt from the present plaintiff, Hira Lal, to prove payment. The latter admitted the receipt of his mortgage money. It would seem, however, that the effort of Mt. Ram Kali miscarried. The evidence of payment was not considered satisfactory and the Court refused to hold that the lady was entitled to priority. Behari Lal naturally was not aware of the actings of Hira Lal but he apparently suspected the existence of an endorsement of payment on the hypothecation bond and alleged payment by Mt. Ram Kali as a ground of defence, it being averred that the suit was instituted for the benefit of Ram Kali in order to enable her to get over her failure in the earlier decision.
2. The trial Court's findings on the question of payment embodied in issue & was somewhat vague. He said:
But in view of the fact that the version of these witnesses has not been accepted in the former suit, I am also not prepared to hold that the defendant has been able to prove as a fact that the deed in suit had been paid off and its payment endorsed on Its back. Therefore this issue must be found against the defendant. This result does - not mean that the probability of the case relating to the payment of the deed in suit and endorsement in respect there of at its back is also set at rest. That probability stands and explains the reason why the plaintiff is withholding the deed in suit and setting up false case of its loss.
It appears thus that the learned Munsif believed that the original deed was not produced because it contained an endorsement of payment which had the effect of discharging the liability of the mortgagor. This is clear from the finding given by him on 7th issue which covered Behari Lal's plea about the suit being for the benefit of defendant 2. He answered that issue in favour of Behari Lal and held that the present suit was instituted with the object of benefiting Mt. Ram Kali. He further held that the mortgage deed was withheld by Hira Lal in order to hide from the Court the fact that it contained an endorsement -at its back. He did not, therefore, accept the plaintiff's plea about the loss of the original and refused to take secondary evidence of the deed in suit with the result that Hira Lal's suit failed and was dismissed with costs.
3. The plaintiff appealed and the only point pressed in the Court of the learned Civil Judge, Partabgarh, was that the loss of the original deed was duly proved. The lower appellate Court carefully examined the appellant's case but eventually it upheld the finding of the learned Munsif and dismissed the appeal. Hira Lal has come up to this Court by way of second appeal.
4. It is contended on behalf of the appellant that the secondary evidence of the deed in suit ought to have been admitted under Clause (b) of Section 65, Evidence Act. The finding with respect to the loss being one of fact was acquiesced in and the only question, therefore, that falls for determination is whether notwithstanding the fact that plaintiff has failed to prove the loss of the original document, he is entitled to produce secondary evidence of the deed on the ground that there existed a written admission by the defendant of the contents of that document.
5. I have carefully considered the arguments of the learned Counsel and am of opinion that the Courts below were justified in refusing to admit the certified copy of the hypothecation bond. It is well known that the contents of a document must, as a rule, be proved by what is called 'primary evidence' and that it is in exceptional cases only that the law permits the production of proof of inferior kind. The exceptional circumstances which justify the admission of such proof have to be such as render the production of primary evidence not feasible; for example, where the Court is satisfied that the original is lost, or is detained by the opponent, or is held by a third person whose presence cannot be secured before the Court without great inconvenience and so on. Secondary evidence, however, of a document which is withheld by the plaintiff for some ulterior purpose can scarcely come within the rule, for, if it is in existence and within the control of the party who wants to produce secondary evidence, its non-production must raise a presumption that, if produced, it would defeat that person's claim. In a case of the kind with which this appeal is concerned, it would, I think, be reasonable to infer that the document contained an endorsement which went against the plaintiff's interests. The provisions of Sections 65 and 66, Evidence Act, are not intended to be utilised for the benefits persons who deliberately or with sinister motives refuse to produce in Court a document which is in their possession, power or control. It is designed only for the protection of persons who, in spite of best efforts, are unable, from circumstances beyond their control, to place before Court primary evidence as required by law. See in this connection Muhammad Zafar v. Zahur Husain and Ors : AIR1926All741 .
6. Thus the argument of the learned Counsel, based upon Clause (b) of Section 65, even if it were other, wise acceptable, would fail for the reasons given above. In order to avail of that provision, however, the written admission of the contents of the document, sought to be produced, has to be the admission of the person against whom it is sought to be proved. The admission which is relied on by the appellant's learned Counsel is of Dudh Nath mortgagor. It is contained in a subsequent bond executed by him in favour of Hira Lal on 19th November 1929 in lieu of Rs. 50 which sum represented interest then due on the previous mortgage of 1924. At the time when the bond was executed, Dudh Nath obviously could not act as the agent of Behari Lal for the purpose of making the admission, nor could he be considered as a representative of defendant 1 or indeed of any defendant within the meaning of Clause (b) of Section 65, Evidence Act.
7. The Courts below were, in my opinion, justified in refusing to admit secondary evidence of the mortgage deed and the suit was rightly dismissed. I dismiss the appeal with costs.