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Madhya Pradesh High Court · body

2012 DIGILAW 811 (MP)

Aneeta Rajpoot v. Saraswati Gupta

2012-08-22

A.K.SHRIVASTAVA

body2012
ORDER 1. By this petition under Article 227 of the Constitution of India, the petitioner is challenging that part of the impugned order dated 27.6.2012 by which the defendant’s (petitioner’s) application under section 65 of the Indian Evidence Act, 1872 (in short “Evidence Act”) has been rejected. 2. The facts necessary for disposal of this petition lie in a narrow compass. Suffice it to say that a suit for eviction on the relationship of landlord and tenant has been filed by plaintiff-respondent against defendant-petitioner. The defendant-petitioner submitted written statement and also filed counter claim praying a decree of mandatory injunction directing plaintiff to execute a registered sale-deed in her favour; perpetual injunction restraining the plaintiff from interfering with the possession of the defendant and also from transferring, encumbering and creating any third party right; declaration that suit property be charged in respect of consideration money paid by the defendant in advance; and any other reliefs which the Court deems fit. According to pleadings of counter claim earlier the parties were having very cordial and sweet relationship as a result of which they entered into an agreement of sale in regard to the disputed house on 28.9.2010 and it was agreed between the parties that said house will be sold for a consideration of Rs.8.70 lacs. In advance a sum of Rs.30,000/- was paid and a sum of Rs.1.50 lacs has been deposited in the account at State Bank of India Milaunigaj, Gopal Bagh Branch, Jabalpur of the plaintiff’s husband Chhatradhari Gupta. Thus, a total sum of Rs.1.80 lacs has already been paid to the plaintiff. A receipt of accepting Rs.1.80 lacs has also been issued by the plaintiff in presence of witnesses. 3. Further it has been pleaded in the counter claim that on 5.12.2008 the plaintiff along with her son-in-law visited to the house of defendant and asked her husband to prepare the document regarding transfer between the parties. A receipt of accepting Rs.1.80 lacs has also been issued by the plaintiff in presence of witnesses. 3. Further it has been pleaded in the counter claim that on 5.12.2008 the plaintiff along with her son-in-law visited to the house of defendant and asked her husband to prepare the document regarding transfer between the parties. It was also demonstrated by the plaintiff that some other persons being interested to purchase the disputed house are pressurizing her to sell the same in their favour, therefore, written document in original be handed over to her in order to show those persons that plaintiff has already obtained the substantial money from petitioner and under this pretext the original (primary evidence) document of receipt was handed over by the defendant-petitioner to plaintiff-respondent and a photocopy thereof was kept by her. 4. An application under section 65 of the Evidence Act was submitted by the defendant-petitioner in the trial Court praying that the photocopy of the receipt may be taken on record as secondary evidence. However, this prayer was vigorously opposed by the plaintiff by filing reply completely denying the fact that ever any such receipt was issued and the same was handed over to her. 5. Learned trial Court marked the aforesaid application of section 65 of I.A. No.2 and by impugned order has rejected the same. In this manner this petition under Article 227 of the Constitution of India has been filed. 6. In his usual vehemence learned counsel for the petitioner Shri Amitab Gupta by inviting my attention to section 63 and also section 65(a) and (b) of the Evidence Act has contended that since the original receipt was obtained by plaintiff’s husband under the false pretext that the same is required by plaintiff to show to several other persons who are pressurizing the plaintiff to sell the suit property to them that the plaintiff has obtained a substantial amount from the defendant and thus she cannot sell the suit property to them. Thus, the original document is in power and possession of the plaintiff and therefore if the application under section 65 of the Evidence Act in terms of clauses (a) and (b) of the said provision has been filed, the learned trial Court ought to have admitted the photocopy of the said receipt in secondary evidence. Thus, the original document is in power and possession of the plaintiff and therefore if the application under section 65 of the Evidence Act in terms of clauses (a) and (b) of the said provision has been filed, the learned trial Court ought to have admitted the photocopy of the said receipt in secondary evidence. Learned counsel has also invited my attention to the section 3 of the Evidence Act and submitted that as per the illustration given interpreting the term “document” has contended that a ‘document’ would also include words “printed, lithographed or photographed” and therefore impugned photocopy is a document and it can be proved in terms of clauses (a) and (b) to section 65 of the Evidence Act. In support of his contention learned counsel has placed heavy reliance on the decision of Supreme Court Nawab Singh v. Inderjit Kaur [ AIR 1999 SC 1668 ], and also another decision Smt. J. Yashoda v. Smt. K. Shobha Rani [ AIR 2007 SC 1721 ], wherein the earlier decision of Supreme Court Ashok Dalichand v. Madhavlal Dube and another [ AIR 1975 SC 1748 ], has been relied upon. Learned counsel has placed heavy reliance on the decision of Rajasthan High Court in Smt. Ratan Sharma v. Ambesedar Drycleaners and others [AIR 1997 Rajasthan 75], wherein it has been held that photocopy is admissible in evidence. 7. It has also been put-forth by learned counsel for petitioner that primary or best evidence is that which affords the greatest certainty to its contents and secondary evidence is that which is inferior to primary evidence and which upon its face shows that better evidence exists and evidence which shows upon its face that better remains behind is secondary. Hence, according to learned counsel by keeping this principle in mind, the photocopy of the document should have been admitted in the evidence. 8. It has also been put-forth by learned counsel that the photocopy has been obtained by a mechanical process, therefore, it has been prayed that application to admit the photocopy in secondary evidence filed under section 65 of the Evidence Act, which has been rejected by learned trial Court, be allowed. 9. On the other hand Shri Amod Gupta argued in support of the impugned order. 10. I have considered the submissions of learned counsel for the parties. 11. 9. On the other hand Shri Amod Gupta argued in support of the impugned order. 10. I have considered the submissions of learned counsel for the parties. 11. Learned counsel for petitioner-defendant rightly submitted that secondary evidence would include categories mentioned in clauses (1) to (5) to section 63. Learned counsel further rightly submitted that if conditions embodied in section 65(a) and (b) of the Evidence Act exist, secondary evidence relating to document can be given. In support of his forceful submissions, learned counsel has placed reliance on two decisions of Supreme Court Nawab Singh (supra), and Smt. J. Yashoda (supra), and also of learned Single Bench of Rajasthan High Court Smt. Ratan Sharma (supra). But, to me, even then in the facts and circumstances of the present case the photocopy of the document of receipt cannot be admitted in secondary evidence. On bare perusal of the application under section 65 of the Evidence Act which has been rejected by the impugned order it is found that although it has been mentioned that under the false pretext the plaintiff and her husband obtained the original receipt from petitioner-defendant, but, nowhere it has been so stated in the application that the photocopy was made from the original and it was compared with original. The name of the person, who had obtained the photocopy by mechanical process has also not been mentioned in the application and further who compared the same with original his name is also not mentioned nor any affidavit in that regard has been filed. 12. So far as the applicability of clause (2) of section 63 Evidence Act placed reliance by the learned counsel for petitioner is concerned, according to me, it can be said that by some mechanical process a photocopy of original receipt was obtained, but, there cannot be any surety of its correctness and accuracy in absence of supporting material on record. Again in this regard there is no averment in the application that the photocopy which has been obtained by mechanical process was never tampered and it ensures its accuracy. Again in this regard there is no averment in the application that the photocopy which has been obtained by mechanical process was never tampered and it ensures its accuracy. Even if accurate photocopy is obtained by a mechanical process, it is a matter of common parlance that after inserting some words on a document which is already a photocopy and by interpolating the same, another photocopy of the said interpolated photocopy may be obtained and thus the accuracy of photocopy is always surrounded by dark clouds of doubt. In the present case since there is no averment in the application under section 65 that photocopy was compared with the original and it is an accurate photocopy of the original and further by not filing any affidavit of person who obtained the said photocopy is on record, it is difficult to hold the hallmark and authenticity and accuracy of the photocopy. 13. The decision of Nawab Singh (supra), placed reliance by the learned counsel for petitioner is not subject to context since it does not relate to admissibility of a photocopy of the document to be admitted in secondary evidence. Similarly another decision of Smt. J. Yashoda (supra), is also not applicable because the photocopy was not compared with the original and therefore photocopy was not admitted as secondary evidence in that case (see para 7 of the said decision). According to me, not only the satisfaction of clause (a) to section 65 is required, but simultaneously it is also required that the photocopy was compared with the original in terms of section 63(3) of the Evidence Act. 14. The Supreme Court in United India Assurance Co.Ltd. v. Anbari and others [ (2000)10 SCC 523 ], while dealing with the photocopy of 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. 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.” Thus, the apex Court has held that photocopy was not sufficient to prove that driver had a valid licence. By following the aforesaid decision of Supreme Court, Shri Justice Dipal Misra, J. (as His Lordship then was) in Haji Mohd. Islam and another v. Asgar Ali and another [ AIR 2007 M.P. 157 ], has held that when a photocopy without any reasonable source has been filed, it is not permissible as secondary evidence. Yet there is another decision of this Court in Writ Petition No.8224/2010 (Sunil Kumar Sahu v. Smt. Awadharani) decided on 31.8.2010 wherein it has been held that photocopy of a document is not admissible as secondary evidence under section 65 of the Evidence Act. 15. However, this would never mean that if the plaintiff by taking undue advantage of having possession of original document of receipt with her, would be permitted to conceal the document in question and in order to prove her dishonesty and her act trying to deprive the defendant-petitioner from proving the contents of the document in question so as to prove her case, it is hereby directed that the petitioner-defendant shall be absolutely free to file another application under section 65 of the Evidence Act praying therein that the defendant may be permitted to adduce secondary evidence in the shape of oral evidence examining the witnesses in order to prove the contents of original receipt of Rs.1.80 lacs which is said to be in power and possession of the plaintiff. If such an application is filed by the defendant-petitioner, learned trial Court shall allow that application and permit the defendant and her witnesses to adduce secondary evidence in regad to contents of the said document and said evidence should not be side lined nor should be treated as an inferior evidence merely because the petitioner-defendant is unable to produce the original receipt because the plaintiff by playing a trick had concealed the document in question. 16. 16. With the aforesaid observations, without interfering in the impugned order, this petition is disposed of.