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Madhya Pradesh High Court · body

2015 DIGILAW 1214 (MP)

Yogesh Shivhare v. Narmada Devi

2015-12-01

ALOK ARADHE

body2015
ORDER 1. With consent of the parties, the matter is heard finally. 2. In this petition under Article 227 of the Constitution of India, the petitioner has assailed the validity of the order dated 24.9.2015 passed by the trial Court by which the application preferred by the respondents under section 65 of the Evidence Act, has been allowed. 3. Learned counsel for the petitioner submitted that the original document itself was not admissible in evidence, therefore, the application under section 65 of the Evidence Act could not have been entertained. In support of the aforesaid submission, learned counsel for the petitioner has placed reliance on a decision of the Supreme Court in the case of Hariom Agrawal v. Prakash Chand Malviya [ (2007)8 SCC 514 ]. On the other hand, learned counsel for the respondents has supported the order passed by the trial Court. 4. I have considered the submissions made by learned counsel for the parties and have perused the record. The trial Court vide impugned order dated 24.9.2015 has allowed the application under section 65 of the Evidence Act only on the ground that the original agreement is exhibitted in the previous suit and, therefore, the permission to lead secondary evidence has been granted. The impugned order has been passed de hors the statutory provision contained in section 65 of the Evidence Act. The impugned order not only suffers from the error apparent on the face of record, but also from the vice of non-application of mind as well. Therefore, the same cannot be sustained in the eye of law. Accordingly, the impugned order is quashed. The trial Court is directed to decide the application preferred by the petitioner under section 65 of the Evidence Act afresh, by a speaking order. Needless to state that it would be open to the petitioner to contend that the application under section 65 of the Evidence Act cannot be allowed, as the original document in question itself is not admissible in evidence. It is made clear that this Court has not expressed any opinion on the merits of the case. 5. At this stage, learned counsel for the respondents submits that since the suit is pending since 2011, therefore, the trial Court be directed to conclude the proceeding in the suit in a time bound manner. 6. It is made clear that this Court has not expressed any opinion on the merits of the case. 5. At this stage, learned counsel for the respondents submits that since the suit is pending since 2011, therefore, the trial Court be directed to conclude the proceeding in the suit in a time bound manner. 6. In view of aforesaid submission, the writ petition is disposed of with a direction to the trial Court to make an endeavour to conclude the proceeding in the suit expeditiously, preferably within a period of six months from the date of receipt of certified copy of the order passed today. 7. With the aforesaid directions, the writ petition stands disposed of.