KAMLA DEVI W/O JAYSINGH KULKARNI v. VANDANA W/O NITIN SONI
2015-09-11
SHEEL NAGU
body2015
DigiLaw.ai
ORDER : Sheel Nagu, J. The present petition under Article 227 of the Constitution of India assails the interlocutory order dated 4.2.2015 passed in Case No. 10-A/2014 whereby the application u/S. 65 of the Evidence Act preferred by the defendant/petitioner herein dated 7.1.2015 for admitting in evidence the photocopy of unregistered agreement to sell dated 12.6.2013 has been rejected. 2. Learned counsel for the rival parties are heard. 3. This court need not go into the prolixity of the merits of the matter involved in the suit in view of the reasons assigned by the trial court in passing the impugned order. 4. The sole reason assigned by the trial court while rejecting the application u/S. 65 (supra) is the non-filing of affidavit in support thereof by the defendant. Rule 10 (ii) of Rules and Order (Civil) framed under M.P. Civil Courts Act, 1958 (for brevity 'M.P. Civil Court Rules and Orders') obliges every party to file an affidavit in support of interlocutory application which contains factual aspects. 5. An application u/S. 65 of the Evidence Act is required to satisfy the existence of various relevant facts. The very first being that the document whose secondary evidence is sought to be produced actually is in existence. The other being, as is the case herein that original of the document in question was lost from the possession of the defendant whereas the 3rd being that the losing and destroying of the original is not attributed to the party claiming to produce it's secondary evidence. 5.1. All these pre-requisites form the bundle of relevant facts necessary for successfully invoking the provisions of Section 65 which are required to be specifically pleaded. Moreso, Rule 10 of the Rules and Order (Civil) framed under M.P. Civil Courts Act, 1958 (for brevity 'M.P. Civil Court Rules and Orders') makes it incumbent upon every litigant while filing applications to verify the same in a manner required by Order 6, Rule 15 of CPC. For ready reference and convenience Rule 10 (ii) of M.P. Civil Court Rules and Orders is reproduced below:- '10. All pleadings, memoranda of appeal, petitions, affidavits, applications and papers of a similar nature to be presented to a Court shall be (ii) verified strictly in the manner required by Order 6, Rule 15 , Civil Procedure Code, where verification is required;' 5.2.
All pleadings, memoranda of appeal, petitions, affidavits, applications and papers of a similar nature to be presented to a Court shall be (ii) verified strictly in the manner required by Order 6, Rule 15 , Civil Procedure Code, where verification is required;' 5.2. In continuation Order 6, Rule 15 CPC obliges every person verifying the pleadings to furnish affidavit in support thereof. 5.3. For convenience and ready reference Order 6, Rule 15 CPC is reproduced below:- '15. Verification of pleadings-(1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. (2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true. (3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed.' 5.4. A conjoint reading of the above said provisions of Civil Court Rules and Orders (Civil) and of the CPC, makes it crystal clear that no application containing any pleading can be accepted or acted upon by a civil Court, which is not supported by an affidavit sworn by the party making the application. 6. A bare perusal of the application u/S. 65 contained in Annexure P-7 reveals that neither any verification nor affidavit supports the said application. It is trite principle of law that no adjudication can take place of pleadings which are not supported by affidavit especially when the same is being adjudicated upon by the competent court without adducing of any oral evidence in support thereof. 6.1. The application u/S. 65 of the Evidence Act preferred by the defendant was not supported by affidavit and therefore has been rightly rejected by the trial Court. 7.
6.1. The application u/S. 65 of the Evidence Act preferred by the defendant was not supported by affidavit and therefore has been rightly rejected by the trial Court. 7. Since the claim of the petitioner of inducting secondary evidence could not be considered on merits by the trial court for the obvious reason of the application being not supported by affidavit this petition though stands dismissed, upholding the impugned order of the trial court, by granting liberty to the petitioner to file properly constituted application u/S. 65 if defendant so chooses in accordance with law, which if filed shall be considered in accordance with law.