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Madhya Pradesh High Court · body

2008 DIGILAW 1208 (MP)

RAJESH KUMAR v. RAKESH KUMAR

2008-10-13

SANJAY YADAV

body2008
Judgment ( 1. ) panch Faisla dated 14. 12. 2000, treated nor as a panch award and neither a recital of a past family partition in metes and bound, but as an "agreement" by the trial court which allowed the respondent/defendant to prove the same by leading secondary evidence by order dated 9. 7. 2004, which is being questioned in the present writ petition filed under Article 227 of the Constitution of India. ( 2. ) THE background facts necessary for the adjudication of the issue whether the existence, contents and conditions of document in question could have been allowed to be proved by leading secondary evidence, are that, the petitioner brought a suit for declaration of his title over the suit lands situate at Mouja Kandeli and Khamaria, Tahsil and District Narsinghpur and permanent injunction restraining respondent/defendant No. 1 from interfering with plaintiffs possession over the suit lands and from alienating the same in favour of third party. The claim, inter alia, rested on the averment that the suit land among other lands and house are the joint Hindu family properties of the petitioner and the respondent No. 1 and after the death of father Premchand Jain in 1994 and mother Pushpabai in 1993, there was an oral partition in 1999 between the petitioner and the respondent No. 1 and the suit land carved out to the share of the petitioner which was duly acknowledged by the respondent No. 1 on 26. 4. 1991 and since he was not adhering to the same, therefore, the suit has been filed. The respondent No. 1 denied the very existence of the partition by filing written statement. The petitioner led his evidence and closed the same. ( 3. ) THAT, while the respondent No. 1 was being examined, an application on 24. 6. 2004 came to be filed on his behalf, seeking the leave of the Court to bring a panch Faisla dated 14. 12. 2000 on record and to prove the same by leading secondary evidence on the anvil that one Dr. Sudhir Singhai, a signatory of said panch Faisla, in his evidence has denied his signature and the execution of the said Panch Faisla. ( 4. 12. 2000 on record and to prove the same by leading secondary evidence on the anvil that one Dr. Sudhir Singhai, a signatory of said panch Faisla, in his evidence has denied his signature and the execution of the said Panch Faisla. ( 4. ) THE trial court taking cognizance of the said application purportedly under order 8 Rule 1 A (3) of the Code of Civil Procedure read with Section 65 of the evidence Act and construing the same to be an agreement allowed it to be proved by leading secondary evidence. The trial court opined: "document under consideration is alleged to be either an arbitration award or a Deed of Partition and accordingly is said to be insufficiently stamped. The plaintiff, therefore, resist the admissibility of said document for "any purpose". However, from the perusal of the contents of document it seems that same is in the nature of "giving recognizance to the earlier partition between the parties. The Panchas have not decided the manner in which the properties are to be partitioned between the parties. On the contrary it seems that parties recognized their earlier partition by giving written consent. It is, therefore, mentioned in page 2 of deed "apne Apne Hisse Ko Manya Karte Hue likhit Sahmati dee aur tadanusar. . . . " Thus, in the opinion of this Court document is neither a Panch award nor a Partition deed but seems to be an "agreement" written on Stamp Paper worth Rs. 75/- and thus is sufficiently stamped as per Art. 5 (b) of Schedule I u/s 3 of the Indian Stamp Act unregistered Document is therefore, admissible in evidence as provided u/s 49 of Registration Act. " According to def. The original is not in his possession. Ion reply to interrogations dt. 10. 1. 2002, the plaintiff has denied the existence and possession of the original person summoned to produce original, i. e. , Dr. Sudhir Singhai has failed to produce the original. Defendant is, therefore, given permission to prove the existence, conditions or contents of the document by leading secondary evidence. " ( 5. ) THE two fold challenge is being put forth by the learned Senior Counsel for the petitioner, that, the document dated 14. 12. Sudhir Singhai has failed to produce the original. Defendant is, therefore, given permission to prove the existence, conditions or contents of the document by leading secondary evidence. " ( 5. ) THE two fold challenge is being put forth by the learned Senior Counsel for the petitioner, that, the document dated 14. 12. 2000 panch Faisla, cannot be construed as an agreement because neither the petitioner nor the respondent were signatory of the said document and the agreement would exist either where a promise is made on one side and asserted to on the other, or where two or more persons enter into an agreement with each other by a promise on either side. It is urged, that since the document dated 14. 12. 2000 did not fulfill the basic element of an agreement, the trial court fell into patent error in construing the same as an agreement. It is further contended that even if the said document dated 14. 12. 2000 is construed to be an agreement, then also the same is not admissible in evidence because the existence of its original is not proved, nor it is proved that the same was properly stamped and therefore not admissible under Section 35 of the Stamp act, 1899. The learned Senior Counsel relies upon the judgment rendered by the apex Court in the case of Jupudi Kesava Rao v. Pulavarthi Venkata Subbarao and others AIR 1971 SC 1070 . It is further contended that even if the document is taken to be a panch Faisla the same cannot be allowed to be proved by leading secondary evidence, because the existence of its original has not been proved. Under these submissions, learned Senior Counsel seeks the quashment of the impugned order. ( 6. ) COUNTERING the assail, the learned counsel appearing for the respondent supports the impugned order being just and proper. It is contended, inter alia, that the trial court is justified in treating the document dated 14. 12. 2000 to be an agreement and since contents whereof have been permitted to be proved rather than admitting the document, the order under challenge cannot be faltered with. It is further contended that no prejudice is shown to have been caused to be petitioner and, therefore, also the impugned order needs not be interfered with. ( 7. ) CONSIDERED the rival submissions. ( 8. It is further contended that no prejudice is shown to have been caused to be petitioner and, therefore, also the impugned order needs not be interfered with. ( 7. ) CONSIDERED the rival submissions. ( 8. ) THE trial court, as noted supra, has construed the document dated 14. 12. 2000, which is styled as "panch Faisla", an agreement. The expression agreement as defined in the Blacks Law Dictionary: Fifth Edition: West: means:- " Agreement A coming together of minds; a coming together in opinion or determination; the coming together in accord of two minds on a given proposition. In law, a concord of understanding and intention between two or more parties with respect to the effect upon their relative rights and duties, of certain past or future facts or performances. The consent of two or more persons concurring respecting the transmission of some property, right, or benefits, with the view of contracting an obligation, a mutual obligation. " ( 9. ) THE essential elements to constitute document to be agreement that there has to be (i) copulation and conjunction of two or more minds in anything done or to be done, (ii) a compact between parties who are thereby subjected to the obligation or to whom the contemplated right is thereby served. In the case at hand the document in question when tested on the touchstone of the expression noted supra, does not, in the considered opinion of this Court, fulfill the criteria because neither the petitioner nor the respondent are the signatory and therefore, the trial court grossly erred in holding the panch Faisla an "agreement". The finding is accordingly set aside. Since this Court has come to a conclusion that the document dated 14. 12. 2000 is not an agreement, therefore, the arguments about its inadmissibility under Section 35 Stamp Act and judgment in Jupudi Kesava Rao v. Pulavarthi Venkata Subbarao and others (supra) is not gone into. ( 10. ) NOW coming into the aspect as to whether the panch Faisla" dated 14. 12. 2000 can be proved by leading secondary evidence, for an answer, we have to turn to Sections 63, 65 and 67 of the Evidence Act (Act No. I of 1872): section 63 stipulates: 63. ( 10. ) NOW coming into the aspect as to whether the panch Faisla" dated 14. 12. 2000 can be proved by leading secondary evidence, for an answer, we have to turn to Sections 63, 65 and 67 of the Evidence Act (Act No. I of 1872): section 63 stipulates: 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. (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. " ( 11. ) FOR our purpose clause (2) read with illustration (b) would be relevant for the document dated 14. 12. 2000 to be proved by leading secondary evidence, meaning thereby, that if the respondent is able to prove the existence of the original from which the copy is prepared, the same can certainly be proved by leading secondary evidence; however, in the case at hand it is observed that the signatory of the document, viz. , Dr. Sudhir Singhai, examined as respondent/defendants witness No. 2, categorically denied the existence of the original. Section 65 of the Evidence Act stipulates: 65. , Dr. Sudhir Singhai, examined as respondent/defendants witness No. 2, categorically denied the existence of the original. Section 65 of the Evidence Act stipulates: 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 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 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 te general result of the whole collection. In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. In case (b), the written admission 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. " ( 12. ) THE section is illustrative and categorizes seven cases in which secondary evidence of a document is admissible. Section 67 of the Evidence Act requires proof of signature and handwriting of person alleged to have signed on written document produced. " ( 12. ) THE section is illustrative and categorizes seven cases in which secondary evidence of a document is admissible. Section 67 of the Evidence Act requires proof of signature and handwriting of person alleged to have signed on written document produced. Thus, unless the originals are proved to be in existence, the secondary evidence of a document cannot be given as a matter of course. In the case at hand no evidence is brought on record to prove the existence of original of which the document dated 14. 12. 2000 has been prepared and in absence of such evidence, the same cannot be proved by secondary evidence. ( 13. ) HAVING thus considered, the impugned order, whereby, the respondent was permitted to prove the existence, contents and condition of document dated 14. 12. 2000 by leading Secondary evidence deserved to be set aside and is hereby quashed. ( 14. ) THE petition is accordingly allowed. However, no costs. Petition allowed.