Research › Search › Judgment

Madhya Pradesh High Court · body

2006 DIGILAW 339 (MP)

HAJI MOHD. ISLAM AND ANOTHER v. ASGAR ALI

2006-03-07

DIPAK MISRA

body2006
( 1 ) IN invocation of the extraordinary Jurisdiction of this Court under Art. 227 of the Constitution of India the petitioners have called in question the penetrability of the order passed in Civil Suit No. 27-A/04 by the learned Civil Judge-II, Jabalpur whereby he has rejected the application preferred under section 65 of the Evidence Act by the petitioners, ( 2 ) THE facts in a nutshell are that the respondents Initiated a civil action seeking ejectment of the petitioners from the suit house on the grounds arrears of rent, subletting and bona fide need for non-residential purpose under Section 12 (a) (b) of the m. P. Accommodation Control Act. It is the case of the respondents before the Court below that they are the landlord of building no. 662 situated at Kotwali ward Jabalpur and the petitioner No. 1 is the tenant of the building as per agreement dated 16-3-1976 executed between the respondent No. 1 and the petitioner No. 1. The accommodation that was let out was one room and basement and was rented for Rs. 100/- per month. As putforth, the petitioner failed to pay rent despite so many demands hence, the claim was filed from 1-7-2001 till the date of filing of the suit at the rate of Rs. 100/- per month. Eviction was also claimed on the ground of subtenancy alleging that the petitioner No. 1 had let out the suit accommodation to his son, the petitioner No. 2 hence, that has resulted as a ground for eviction. In addition, it was pleaded that the suit accommodation was required by the respondents for keeping the goods of their shops as they have no other accommodation for keeping the same. ( 3 ) THE petitioners filed their written statement disputing the allegations put forth in the plaint and stated that the respondent no. 1 has let out one room in the ground floor and the basement at the rate of Rs. 100/- per month. An agreement was executed in writing on 14-3-1976 as per annexure P-4. After some time the respondents because of need requested the petitioner No. 1 for vacating the same and regard being had to the good relationship the petitioner vacated the ground floor and accordingly a new agreement was made which is known as 'tabdeeli Kirayanama'. 100/- per month. An agreement was executed in writing on 14-3-1976 as per annexure P-4. After some time the respondents because of need requested the petitioner No. 1 for vacating the same and regard being had to the good relationship the petitioner vacated the ground floor and accordingly a new agreement was made which is known as 'tabdeeli Kirayanama'. It is set forth that the respondents were in need of big room and small room of ground floor and the same were vacated by the petitioner and now the petitioner is in possession of the basement only. Considering the aforesaid changed accommodation rent was reduced, and settled at Rs. 50/- per month. The petitioners denied the arrears of rent and the factum of sub-letting and prayed for dismissal of the suit. ( 4 ) WHEN the matter was pending before the Court below the petitioner filed an application dated 9-7-2004 for production of the original deed dated 16-3-1976 and changed rent deed dated 19-11-1986. The respondents filed their reply to the said application stating that they are in possession of the agreement dated 16-3-1976 and prepared to file the same but they are unable to file the changed deed as they are not in possession of it. ( 5 ) IN view of the aforesaid situation the petitioner filed an application under Section 65 of the Evidence Act to produce secondary evidence as the respondents refused to produce the changed rent deed. A copy of the said application has been brought on record as Annexure P-8. The respondents replied to the said application putting forth a stance that they are not in possession of the said deed. The learned trial Judge considering the material brought on record rejected the application preferred under section 65 of the Evidence Act by the petitioners on the ground that there is no material to hold that the original is in possession of the respondents. ( 6 ) QUESTIONING the said order it is put forth in the petition when the defendants had taken a categorical stand and that the original changed deed was with the respondents the learned trial Judge should not have rejected the application of the petitioners preferred under Section 65 of the Evidence Act and should have permitted them to lead secondary evidence. It is putforth that the Court below did not appreciate the factum that the respondents had suppressed the original changed deed and hence, a photo stat copy of the same has been produced by the petitioners and hence, they should have been allowed to lead secondary evidence. ( 7 ) I have heard Mr. M. Unus, learned counsel for the petitioners and Mr. Sushil agrawal, learned counsel for the respondents. ( 8 ) THE seminal question that arises for consideration is whether the learned trial judge is justified in rejecting the application for grant of permission to lead secondary evidence by the defendants petitioners. The Court below has come to the conclusion that the plaintiffs had categorically and unequivocally disputed the existence of the changed deed dated 19-11-1986. The defendants produced a photo copy of the same but the sources of the photocopy has not been stated in the petition. Submission of the learned counsel for the petitioners is that the photo copy of this nature should have been accepted as a secondary evidence. The learned counsel for the plaintiffs would contend when there was absolute denial about execution of the deed in question a photocopy without any revelation of the sources is not permissible to be tendered as secondary evidence. ( 9 ) IN this context, I may refer with profit to Sections 63 and 65 of the Evidence Act which read as under : "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 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. Illustrations (a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original. (b) A copy, compared with a copy of a letter, made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original. (b) A copy, compared with a copy of a letter, made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original. (c) A copy transcribed from a copy, but afterwards compared with the original is secondary evidence; but the copy not so compared is not secondary evidence of the original although the copy from which it was transcribed was compared with the original. (d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine copy of the original, is secondary evidence of the original," xxx XXX XXX section 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 be easily moveable; (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 a 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. In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. In cases (a), (c) and (d), any secondary evidence of the contents of the document 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 any person who has examined them, and who is skilled in the examination of such documents. " ( 10 ) ON a perusal of the stand taken by the plaintiff it is quite luminescent that they had denied the execution of the documents. No proof has been produced that the document was executed and they are in possession of the plaintiffs. There is also no assertion that the said document is in the dominion and power of the plaintiffs. The copy which has been filed in tendering the secondary evidence was neither a certified copy nor a true copy of the original deed. ( 11 ) IN this context I may refer with profit to the decision rendered in the case of badrunnisa Begum v. Mohamooda Begum, air 2001 AP 394 wherein the Division Bench after referring to the illustration made in section 65 of Evidence Act has held as under : "as is seen above, this illustration merely says that 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 does not produce it. So, in order to get the benefit under Section 65 (a)three things have to be shown; (1) that the document is. or appears to be in the possession or power of the person against whom the document is sought to be proved; (2) it is in possession of any person out of reach, or not subject to the process of the Court, or of any person legally bound to produce it; and (3) that even after a notice under section 66. the person who has its custody does not produce it. Section 66 lays down the mode of getting the document before the court. the person who has its custody does not produce it. Section 66 lays down the mode of getting the document before the court. Under this section the person who wants the document has to give a notice to the person in whose custody the document is, and if no such notice is prescribed under law then a notice which the Court may consider reasonable. Therefore, Section 63 of the Evidence Act lays down what can be termed as secondary evidence and Section 65 lays clown in which situations secondary evidence can be led, Section 65 (a) does not in any way make a copy of a copy admissible in evidence as it is barred under Section 63. " ( 12 ) IN this regard I may profitably refer to the decision rendered in the case of United india Assurance Co. Ltd. v. Anbari and others (2000) 10 SCC 523 wherein the Apex court while dealing with the photo copy of the licence of a driver expressed the view as under : "3. Learned counsel for the appellant submitted that the point regarding validity of the driver's licence was raised by the appellant before the motor Accidents Claims Tribunal and the Tribunal in accepting photocopy of a document purporting to be the driver's licence and recording a finding that the driver had a valid licence, has committed a grave error of law. He also submitted that the High Court has not dealt with the said contentions of the appellant and without giving any reason has dismissed the appeal. The Tribunal and also the High court have failed to appreciate that production of a photocopy was not sufficient to prove that the driver had a valid licence when the fact was challenged by the appellant and genuineness of the photocopy was not admitted by it. " ( 13 ) IN this context it is apposite to refer to the decision rendered in the case of kalyan Singh v. Smt. Chhoti and others, (1990) 1 SCC. 266 : ( AIR 1990 SC 396 i wherein it has been held as under : "25. The High Court said, and in our opinion, very rightly, that Ex. 3 could not be regarded as secondary evidence Section 63 of the Evidence Act mentions five kinds of secondary evidences. 266 : ( AIR 1990 SC 396 i wherein it has been held as under : "25. The High Court said, and in our opinion, very rightly, that Ex. 3 could not be regarded as secondary evidence Section 63 of the Evidence Act mentions five kinds of secondary evidences. Clauses (1), (2) and (3)refer to copies of documents, clause (4) refers to counterparts of documents and clause (5) refers to oral accounts of the contents of documents. Correctness of certified copies referred to in clause (1) is proper evidence. A certified copy of a registered sale deed may be produced as secondary evidence in the absence of the original. But in the present case Ex. 3 is not a certified copy. It is just an ordinary copy. There is also no evidence regarding contents of the original sale deed. Ex. 3 cannot, therefore, be considered as secondary evidence. The appellate Court has a right and duty to exclude such evidence, ( 14 ) IF the obtaining factual matrix is tested on the touchstone of the aforesaid principles of law, the document that has been sought to be tendered as secondary evidence is neither a certified copy nor a true copy indicating endorsement. In my considered view the document does not meet with the requirement of Section 65 of the Evidence Act. In the absence of any proof and requirement of law not being satisfied, I am of the considered opinion, the order of the learned trial Judge does not suffer from any infirmity. ( 15 ) RESULTANTLY, the writ petition, being devoid of merit, stands dismissed without any order as to costs. Petition dismissed. .