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2015 DIGILAW 546 (MP)

Sarla Agrawal v. Prakash Chandra Agrawal

2015-05-07

SUJOY PAUL

body2015
ORDER 1. This petition filed under Article 227 of the Constitution challenges the order dated 29.1.2009 (Annexure P-1). 2. The Court below by this order allowed the application preferred by the respondent/applicant under section 65 of the Evidence Act. The respondent produced photocopy of the document dated 7.6.1993 and photocopy of affidavit which were taken as secondary evidence. 3. Shri A.V. Bharadwaj criticized this order by contending that the Court below by order dated 10.5.2006 disallowed the very same documents and refused to treat them as secondary evidence. In absence of any justifiable reason, it was not open for the Court below to allow the same documents. In addition, it is contended that the said documents cannot be treated as secondary evidence. 4. Shri J.S. Kaurav and Shri N.K.Gupta (junior) supported the order passed by the Court below. 5. I have heard the learned counsel for the parties and perused the record. 6. It is seen that the applicant made a similar request by preferring application dated 3.5.2006 before the Court below. It was prayed that the photocopy of affidavit and photocopy of order dated 7.6.1993 be treated as secondary evidence. The Court below by order dated 10.5.2006 disallowed the said application. Thereafter, the said documents were again filed before the Court below which were treated as secondary evidence by order dated 29.1.2009. The Court below stated that after rejection of earlier application, the applicant made efforts to summon the original record of order dated 7.6.1993 from Municipal Corporation, Gwalior. The record could not be traced and produced before the Court. The Court below thereafter allowed the application. It is held that the original document is in possession of Objector Sarla Agrawal. The said Objector provided photocopy of said document to the applicant. Hence, the document was treated to be secondary evidence under section 65 of the Evidence Act. 7. The petitioner has filed reply to the application filed under section 65 of the Evidence Act. In reply (Annexure P-7), the petitioner has denied the genuineness of the said documents and other averments of the application were also specifically denied. There is no admission by the petitioner that the said documents were provided to the applicant by the Objector. The reply (Annexure P-10) dated 24.7.2008 also shows that the Objector never accepted the genuineness and correctness of the documents. Thus, the findings of the Court below is perverse. There is no admission by the petitioner that the said documents were provided to the applicant by the Objector. The reply (Annexure P-10) dated 24.7.2008 also shows that the Objector never accepted the genuineness and correctness of the documents. Thus, the findings of the Court below is perverse. There was no material change in circumstances after passing of the earlier order dated 10.5.2006. The Court below was bound by its own order dated 10.5.2006. After rejecting the earlier application under section 65 relating to same documents, it was not open for the Court below to admit the same documents as secondary evidence. Even otherwise, the necessary ingredients for treating the said documents as secondary evidence were not available. Thus, the order of Court below suffers from procedural impropriety and perversity. 8. Resultantly, the impugned order dated 29.1.2009 is set aside. Petition is allowed. .....................