1. This revision petition has been filed against an order passed by Sub-Judge, Rawalakote on 22-10- 1909 whereby he has admitted into evidence copy of a judgment of the Jammu & Kashmir High Court.
2. Brief facts of the case are that on 26-9-1966 the petitioners brought a suit for possession of 28 kanals 6 marlas of land together with a house situate in Pothi Makwalan, Tehsil Rawalakote on the ground of being its owners. It was claimed that the defendants H ere in possession as tenants. In their written statement the defendants pleaded res judicata, claiming that there was civil litigation between the parties about the land in dispute during Dogra regime and that the Jammu & Kashmir High Court had, vide its judgment dated 31st Har, 2004 Bikritni decided the suit in their favour by upholding their claim of adverse possession. A copy of this judgment was attached with the written statement.
3. Hashmat defendant appearing as a witness on 17-10-1969 stated that they had brought a suit against the plaintiffs during Dogra regime; that the trial Court dismissed their suit but the District Judge decreed it in their favour and further that on appeal to the High Court, the decree of the District Judge was maintained. He further stated that on account of the out-break of the War of Liberation they were not able to get a copy of the judgment immediately ; that in 1960 while he was working as an orderly with the U. N. Observers group at Lahore he mentioned this difficulty to a foreign officer who was kind enough to bring a copy of the judgment for him from Srinagar which he had placed on the file. At this stage of his evidence, the learned counsel for the plaintiff objected to the admissibility of the document. However, after hearing arguments, the Court admitted the same into evidence and it is against this order that the present revision has been filed.
4. The learned counsel for tile petitioners contended that the document could rot be admitted into evidence because it was a foreign Court judgment and was not therefore admissible without a certificate as required by section 86 of the Evidence Act. This section is reproduced below: --- "The Court may presume that any document purporting to be a certified copy of any judicial record of any country not forming part of the State of Jammu & Kashmir is genuine and accurate, if the document purports to be certified in any manner which is certified by any representatives of the Azad Government of the State of Jammu & Kashmir (in or for) such country to be the manner commonly in use in that country for the certification of copies of judicial records."
5. The questions that arise for determination in this case are :-
(i) Can the judgment in question be termed as judgment of a foreign Court within the meaning of section 86 of the Evidence Act and section 2 (6), C. P. C.?
(ii) 1s Indian occupied Kashmir a foreign country within the meaning of section 86 of the Evidence Act and section 2 (5) the Code of Civil Procedure?
6. Under section 2 subsection (6) of the C. P. C., a foreign judgment has been defined as judgment of a foreign Court. Under section 2,subsection (5) of the C. P. C. Foreign Court has been defined as a Court situate outside the State of Jammu & Kashmir and not established or continue by the authority of the Azad Government. Thus while on the one hand the occupied Kashmir High Court is neither established nor continued by the authority of the Azad Government, the territory within which it exercises its jurisdiction, being situate within the State of Jammu and Kashmir, is not a foreign territory so far as the Azad Government is concerned that would be the legal value of a judgment given by a Court established or continued and maintained by an occupation authority and sought to be used in the liberated territory, is not before me in this case and therefore I refrain from going into a discussion of the same. In the present case the decision was given before the Partition of India and the coming into being of the Azad Government. Would that be a foreign judgment within the meaning of section 2 subsection (6)? In AIR 1950 Cal. 12 a decree by the Munsif of Jamalpur in Mymensingh district, East Pakistan passed before the 15th of August 1947, was treated as a foreign judgment. It seems it was so treated because the Jamalpur Court having become a foreign Court after the establishment of Pakistan, its record was also treated as record of a foreign Court. The ruling was not available here and it cannot therefore be said what reasons went behind this decision.
7. "Section 2 (I) ---"Old Regime" shall mean the Dogra Regime of the Jammu & Kashmir State before the 24th day of October 1947.
8. Section 2 (iii).-Government shall mean the Azad Kashmir Government."
9. This definition of the word "Government" was not inconsistent with the Government's claim of being the dejure Government of the whole State though the wording was somewhat unhappy. It did not mean the Government of liberated Kashmir but Azad Government of Kashmir, in opposition to the occupation regime in the State.
10. "Section 22 -In all laws, rules, orders and correspondence, wherever the expression Azad Kashmir or the Azad Jammu and Kashmir Government occurs, the same shall be read as the 'Azad Government of the State of Jammu & Kashmir."
11. This Act was repealed vide section 18 of the Azad Jammu and Kashmir Government Act of 1964 but even in this Act the definition of the Government as contained in the repealed enactment was maintained as shown below: "Section 2 (d).-"Government means the Azad Government of Jammu and Kashmir."
12. This is not inconsistent with international usage and custom. Absence of de facto control over the whole or a part of the territory does not prevent a parallel regime from claiming itself to be the dejure Government of the whole territory. Instances are not wanting. Even after Abyssinia was completely over-run by Italy in 1935-36, the exiled Government of Haile Sellassie continued its claim of being the dejure Government of the country; during the Spanish Civil War in thirties, the rebel regime of General Franco, although in possession of only a part of Spain, claimed to be the dejure Government of Spain and many a foreign countries tacitly accepted the position; after France passed into German occupation in the last World War, General De Gaulle set up; Government-in-exile in Britain claiming to be the dejure Government of France; in Algeria the Provisional Government of Ferhat Abbas with its headquarters in Tunis claimed itself to be the dejure Government of Algeria although France was in de facto control of the country. Latest is the example of Cambodia where Prince Sihanouk has set up a Government-in-exile and claims it to be the dejure Government of the country.
13. The claim of the Azad Government is much stronger than even that of the Governments of Ferhat Abbas and Sihanouk because it is in effective control of 1 3rd of the State's total area. Therefore, the mere fact that its writ does not run in the entire State and there is therefore a limitation on its de facto authority for that area does not, in my opinion, affect its claim of being the only legitimate Government of the entire State. Forcible occupation of the better and greater part of the State by and invading army and perpetuation of this occupation against popular will and by turning the occupied area into a vast concentration camp, does not turn the occupied territory into a foreign country so far as the Azad Government of Jammu and Kashmir or Jammu and Kashmir nationals living on this side of the cease-lire-line are concerned. Kashmir has, strictly speaking, no parallel in the history of modern International Law. Germany, Korea or Indo-China despite being divided have no parallel to the division of Kashmir. Here, even under the United Nations resolutions to which India is committed, the future of the State's accession to Pakistan or India has yet to be decided through a plebiscite. Azad Government rightly treats Indian occupation across the cease-lire-line as a naked aggression. Same is the policy and stand of the Pakistan Government. The United Nations also treats the Jammu & Kashmir State as a disputed territory whose accession to Pakistan or India has yet to be determined. 1n fact the de jury recognition of Indian occupation leas remained and continues to remain, the main objective of the Indian Foreign Policy but the same has been repudiated not only by the Azad Government, Pakistan, many freedom-loving countries of the world but even by the United Nations which does not show Kashmir as part of India; it remains on its agenda.
14. Under these circumstances it cannot be validly held that occupied territory across the 500-miles long uneasy cease-fire-line is a foreign territory. As it has been held that occupied Kashmir B is not a foreign country, the judgment in question is not a foreign judgment within the meaning of section 2 (5) and the certificate required under section 86, Evidence Act has no application to the present case.
15. We now pass on to another aspect of the question. The copy of judgment in question has been issued after the setting up of the Azad Government and has been issued and certified under the authority of the High Court in occupied territory. As the Azad Government is the dejure Government of the entire State and the High Court across the cease-fire-line is neither established nor C maintained by this Government, certification of it by the said High Court's issuing agency is a nullity in the eyes of law and has to be ignored.
16. The judicial record whether of the home or of a foreign country is a public document under section 74 of the Evidence Act Under section 76 a public officer entrusted with the custody of a public document is required to issue its copies certifying that it was a true copy. Under section 77 such certified copies can be produced in proof of the contents of such documents. Under section 79 the Courts are to presume such certified copies to be genuine. Under section 63 such certified copies have been treated as secondary evidence of the public documents of which they purport to be certified copies. Under this section even copies made from or compared with the original also come under the category of secondary evidence of such documents. The difficulty, however, arises when we go to section 65. Under this section in case of documents which are original public documents within the meaning of section 74 of the Evidence Act and those public documents of which a certified copy is permitted by this Act, a certified copy of the document but no other kind of secondary evidence has been made admissible.
17. Before proceeding further let me reproduce below section 65 :- "65. 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 ;
(c) 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 originals consist 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.
18. The judgment of which a copy has been produced in this case was a public document within the meaning of section 74 up to the coming into being of the Azad Government. As the Court which has issued the copy or in whose record the original judgment exists is neither a foreign Court nor one maintained by the Azad Government, but on the contrary one maintained by an occupation regime, having no legal existence in the eyes of the l Azad Government, it has ceased to remain a public document within the meaning of section 74 because this section has no application to judicial record which has fallen into the hands of the enemy. This section visualizes as certifying agency and custodian of record an authority which either draws its source p from Azad Government or a foreign Government and not one that draws such authority from a declared enemy with whom the Azad Government is in a State of suspended war. As sub--sections (c), (f) of section 65, have no application in these circumstances, the proviso that no other kind of secondary evidence except a certified copy of the judgment being admissible, also has no application here.
19. Secondary evidence of the judgment can, therefore, be given under subsections (a) and (c) of section 65. Subsection (a) is applicable because the original document is not only in the l possession of a person or authority out of reach of the process of the Courts established and functioning in the liberated territory but also because such person or authority is factually not subject to the process of our Courts. Secondary evidence can also be admitted of its contents under subsection (c) because the no production of the original judgment or a legally valid certified copy of the same is not due to any default or neglect on the part of the defendant; that he cannot produce it `in reasonable time' as further required by the subsection, is apparent from the very fact p that so long as the question of the State's accession to Pakistan or India is not determined in accordance with U. N. Resolutions, the defendants cannot get such an opportunity: whether it would be accomplished within a "reasonable time" or not depends largely on how soon the dormant conscience of the world community is awakened. However, the admission of secondary evidence by the defendants cannot justifiably be delayed or disallowed till then otherwise, they may well cry in anguish: What kind of secondary evidence can be given, has been provided in section 63 of the Evidence Act which is reproduced below "Section 63.-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 insure 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."
20. It has been held in some cases that "this section is exhaustive of the kinds of secondary evidence which can be let in." Reference may be made to AIR 1937 Lah. 370. This view is based on the interpretation of the words "means and includes." On the other hand it was hell by all the three learned Judges of the Madras High Court who heard the case reported as 28 I C 69 that the section was not exhaustive. Mr. Justice Tyabji said :- "Proof by secondary evidence of the document (in question) is admissible only in cases mentioned in the Indian Evidence Act. Section 63 purports to define what secondary evidence means and includes. Section 65 refers to cases in which secondary evidence may be given. It would seem however that the five clauses of section 63 referring to secondary evidence are not exhaustive for though section 63 purports to enumerate the cases in which secondary evidence may be given the evidence which is rendered admissible in cases (b) and (g) would not apparently fall under any of the five clauses of section 63, referring to what secondary evidence means and includes."
21. "Copies made from or compared with the original."
22. It is nowhere laid down that the person producing the copy must have himself `made' it. In 9 Cal.
23. 939: 8 I J 140 was involved the question of the admissibility of a document purport--ing to be a copy of a letter produced under the following circumstances, in the words of the High Court judgment: -- "A witness was called before the Commissioners to prove that a certain portion of the cutch shipped by the plaintiffs in the ship Gertrude had been appropriated to a particular company in America. The following questions and answers were recorded: Question.---Do you know what was done with the shipment per Gertrude so far as that appropriation that you speak of is concerned, that is to whom it was appropriated?
24. Answer.-To the Boston Dye Wood and Chemical Company. It was done by letter; the paper I now produce is a copy of the original letter and I know it to be a copy."
25. The learned Judges held that the copy had been rightly admitted into evidence and further held: "that the fair interpreta--petition is that the witness knew it to be a copy made from the original from personal knowledge."
26. This subsection has two alternatives. The copy should either have been made from the original or it must have been compared with the original. Therefore, in the light of the ruling cited above, if a witness produces a document purporting to be a copy of a judgment delivered by any Court now situate in occupied Kashmir but delivered before the 3rd of October 1947, it can be admitted p into evidence under section 63 subsection (3) on his making a statement on solemn affirmation that it was made from the original judgment. Personal knowledge can then be presumed. There have been instances when people have risked their lives by crossing the cease-fire-line in order to secure such copies ; in one case, the Hindu lawyer was good and gracious enough to send the requisite copy at his own costs. A third and so far the solitary instance of its kind is the present one where a U. N. Observer moved either by pity aroused, or devoted services rendered by his servant or perhaps possessed of a deep humanity, took the unusual trouble of getting copy from Srinagar.
27. Of course it is open to the Court to disbelieve such a witness or hold that the copy was not proved to have been made from the original. That has nothing to do with admissibility as such but with the quantum of proof as to whether it really was a copy made from the original.
28. Keeping in view the tragedy that the dawn of freedom in the Sub-Continent brought in its train for the people of the State where even innocent movement near cease-fire-line in occupied area results in fatal shooting by the army of occupation and where civility of law and administration has totally disappeared, the Courts in the liberated territory should be most considerate in accepting or rejecting such pre-Independence record. Technicalities of law should not be stretched too far to circumvent the demands of justice. If err they must, I would prefer if they did so in favour of admissibility.
29. I, therefore, see no force in this revision which is hereby dismissed with costs.
30. S. A. H.