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Madhya Pradesh High Court · body

2014 DIGILAW 419 (MP)

Hemraj v. Munnalal

2014-04-15

SUJOY PAUL

body2014
JUDGMENT : The instant petition filed under Article 227 of the Constitution challenges the order dated 26.4.2012 passed by the trial Court in CaseNo.13-A/10, whereby the application of the petitioner/plaintiff for grant of permission to lead secondary evidence has been rejected. 2. The petitioner filed a suit for declaration and partition against the defendant. The petitioner relied on a document dated 23.1.97(Annexure P-3). It is the case of the petitioner that it is a Panchanama which acknowledges partition entered between the parties. The petitioner filed an application under Section 65 of the Evidence Act.(Annexure P-4) with a view to seek permission to treat the document dated 23.1.1997 as a secondary evidence. The defendants/respondents denied the averments of the application referred under Section 65 of the Evidence Act. The Court below by impugned order dated 26.4.2012 opined that the said document is a photocopy and original is not produced before the Court. Neither the original, nor the photocopy is registered under Section 17 of the Registration Act. For these reasons the said document cannot be treated as secondary evidence. 3. Shri S.K. Shrivastava, learned counsel for the petitioner fairly admits that it cannot be doubted that the reasons assigned by the Court below are in consonance with the legal position. He admits that this Court in 2013 (3) M.P.L.J. 242 (Vijendra Singh and others Vs. Deena and others) has taken the view that a document which is not properly stamped cannot be accepted in evidence. It is further held that the true copy or photocopy cannot be accepted in evidence unless necessary ingredients of Section 63 and 65 are fulfilled. However, Shri S. K. Shrivastava, submits that he deserves relief and liberty of filing fresh application under Section 65 of the Act as per para 15 of the judgment reported in 2012(4) M.P.L.J. 561 (Aneeta Vs. Saraswati). 4. Prayer is opposed by the other side. 5. Shri A.V.V Bharadwaj, learned counsel for respondents No. 1 & 2 submits that in absence of fulfilling the necessary ingredients of Section 6 5 of the Act, a document cannot be admitted in evidence. 6. I have heard the learned counsel for the parties and perused the record. 7. This Court in Vijendra Singh (supra) opined as under:- “5. Admittedly, the document in question submitted by the petitioners is a true copy/photocopy. 6. I have heard the learned counsel for the parties and perused the record. 7. This Court in Vijendra Singh (supra) opined as under:- “5. Admittedly, the document in question submitted by the petitioners is a true copy/photocopy. There is no material to show that for admitting secondary evidence, the necessary ingredients were fulfilled by the petitioners. In absence of showing the original to the Court, secondary evidence cannot be admitted in view of sections 63 and 65of the Evidence Act. In Natthu Khan (supra), the Division Bench of this Court opined as under in Para 7 :- “7. In our opinion, if a document is an agreement for sale and is not duly stamped then a Court or an officer who has to receive the document in evidence would have jurisdiction to decide the question of stamp duty payable and thereafter, may require the party producing the document to pay the penalty that too at ten times. If the document is a complete sale and it is in relation to tangible immovable property worth more than R.100/- then a document unless it is registered would not be admissible in evidence irrespective of the fact that it is on proper stamp or not.” 6. In the facts and circumstances of this case, in my opinion, the argument of Shri D.D. Bansal, learned Counsel for the respondent, has substantial force, The sale-deed shows that a complete sale took place and in this view of the matter, the judgment of Natthu Khan (supra), will apply and this sale-deed of the property whose worth is admittedly more than R.100/- cannot be taken in evidence unless it is properly stamped. For this reason, there is no flaw in the order passed by the Court below. In Avinash Kumar Chauhan (supra) the Apex Court opined that an unregistered document may be admitted in evidence but a document which is insufficiently stamped cannot be used even for collateral purpose.” 8. Section 65 of the Evidence Act in no uncertain terms makes it clear that secondary evidence can be given if the original is shown or appears to be in possession or power of the person against whom document is sought to be proved. Section 65 of the Evidence Act in no uncertain terms makes it clear that secondary evidence can be given if the original is shown or appears to be in possession or power of the person against whom document is sought to be proved. It further provides that the document may be in possession or power of a person who is out of reach of, or not subject to the process of the Court or to any person legally bound to produce it. However, the precondition is that when after notice mentioned in Section 66 such person does not produce it. I find force in the argument of Shri A.V. Bharadwaj that there is no material on record to show that the petitioner has sent any such notice as required under Section 66 of the Evidence Act. He added that no such notice was preferred. Thus, it is clear that the petitioner has not fulfilled the requirement of Section 65(a) r/w Section 66 of the Act. 9. So far the liberty for filing fresh application as per para 15 of the judgment of Aneeta (supra) is concerned, it is apt to note that in the said case the Court gave a finding of fact that the plaintiff by playing a trick has concealed the document in question. There is no such factual foundation available in the present case. Section 91 of the Evidence Act reads as under:- “91. Evidence of terms of contracts, grants and other dispositions of property reduced to form of documents.--When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.” (Emphasis supplied) 10. Section 91 was not considered by this Court in Aneeta (supra). Thus, the said judgment is distinguishable. 11. The scope of interference under Article 227 of the Constitution is limited. Section 91 was not considered by this Court in Aneeta (supra). Thus, the said judgment is distinguishable. 11. The scope of interference under Article 227 of the Constitution is limited. If order is shown to be passed by a Court having no jurisdiction, it suffers from manifest procedural impropriety or perversity, interference can be made. Interference is made to ensure that Courts below act within the bounds of their authority. Another view is possible, is not a ground for interference. Interference can be made sparingly for the said purpose and not for correcting error of facts and law in a routine manner. This view is taken in Shalini Shyam Shetty and another Vs. Rajendra Shankar Patil reported in (2010) 8 SCC 329 .None of these ingredients are available in the present case. 12. In view of aforesaid analysis, I am of the considered view that the Court below has not erred in rejecting the application under Section 65 of the Evidence Act. 13. Resultantly, I find no infirmity in the order passed by Court below. Petition is dismissed.