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2016 DIGILAW 493 (MP)

Aneesh Kumar Dhakre v. Dauli Bai

2016-06-22

VIVEK AGRAWAL

body2016
ORDER 1. The petitioners, who are the defendants before the trial Court, have filed this writ petition challenging the order dated 3.12.2015 passed in RCS No.80-A/2015 pending before First Additional Judge to the Court of First Civil Judge, Class II, Guna. 2. The contention of the petitioners is that plaintiff/respondent No.1 has filed a suit for declaration and permanent injunction claiming that plaintiff Dauli Bai is the owner of 1/7th area of land contained in survey Nos.828, 831 and 835. It is claimed that out of the total land of 11.422 hectares contained in theses survey numbers, she is entitled to be declared owner of 1/7th portion i.e. 1.631 hectares. 3. Defendants No.3 and 5 filed their written statement and denied all the contents of the plaint. These defendants No.3 and 5 are the petitioners in this writ petition. 4. Petitioners are aggrieved by rejection of their application under section 63 read with section 65 of the Evidence Act vide which they wanted the trial Court to accept the receipt dated 5.10.1993 executed by plaintiff Dauli Bai to be admitted in secondary evidence and they are also aggrieved by partial rejection of their application under section 45 of the Evidence Act. 5. The application under sections 63 and 65 of the Evidence Act is available on record as Annexure P-4. According to this application, plaintiff Dauli Bai had executed a receipt dated 5.10.1993, photocopy of which has been filed along with the said application and it is averred that Dauli Bai had also executed an affidavit on 5.10.1993 which is Ex.D-1 and certified copy of the order passed by the Court of Additional Commissioner, Gwalior Division, Gwalior, is Ex.D-2. They had also relied on the copy of compromise dated 6.10.1993 (Ex.D-4) which was effected before the Court of Sub-Divisional Officer, Guna, in Case No.42 Aa Ma/92/93 and they averred that in Ex.D-4 there is mention of receipt dated 5.10.1993, photocopy of which has been filed by the petitioners and accordingly the said receipt being supported by the affidavit of Dauli Bai, the orders passed in revision and the compromise effected before the Court of SDO should be admitted as secondary evidence. 6. 6. This application has been opposed by the plaintiff who filed her reply and submitted that she never entered into any compromise with the defendants, nor she received any amount and issued receipt under her own signatures or thumb impression. She further mentioned that the said receipt has been prepared by committing forgery so to illegally take over the land of the plaintiff. It is further mentioned that the defendants had prepared a forged judgment of the Board of Revenue which has been proved in Civil Suit No.5-A/2003 decided on 25.11.2003 between Ganeshram son of Biharilal v. Ramsingh son of Jujhar Singh and others. Similarly, it is mentioned that a forged power of attorney was prepared and on the basis of which, said transaction is said to have been conducted. 7. Learned trial Court after giving due consideration has rejected the application under section 63 read with section 65 of the Indian Evidence Act on the ground that photocopy of a document is admissible as secondary evidence if it is proved to be genuine. It is further mentioned that it is necessary before admitting a document in secondary evidence that genuineness of the document can be proved by comparing it from the original. In this regard, provisions of section 63 are elaborate and provide for the conditions under which secondary evidence can be admitted. Similarly, section 65 of the Evidence Act also elaborately describes the cases in which secondary evidence relating to documents may be given. It is seen from the pleadings that present petitioners have tried to make a case under section 65(c) of the Evidence Act which provides that when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time. 8. In the present case, in the application (Annexure P-4), it is clearly mentioned that original of the said receipt is not being traced despite several attempts and it has been lost. This averment will fall in the exception part of clause (c) of section 65 of the Evidence Act which says “for any other reason not arising from his own default or neglect”. This averment will fall in the exception part of clause (c) of section 65 of the Evidence Act which says “for any other reason not arising from his own default or neglect”. Thus, it is an admitted position that for their own default or neglect defendants/petitioners could not produce the original of the said receipt dated 5.10.1993, and therefore, this case is not covered under section 65 and section 63 of the Evidence Act. On the other hand, learned counsel for respondent No.1/plaintiff has supported the order of the trial Court and relied on the law laid down by this Court in the case of Gwalior Development Authority v. Dushyant Sharma, as reported in 2013 (II) MPWN 53 wherein this Court has dismissed the petition filed against rejection of the application under section 65 of the Evidence Act by the defendant for admitting the photocopies of the documents in secondary evidence stating that original documents have been stolen. Therefore, learned trial Court has rightly rejected the application under section 63 read with section 65 of the Evidence Act. 9. Petitioners are also aggrieved by the order vide which their application under section 45 of the Evidence Act has been allowed only in part. The said application is filed as Annexure P-6 and it is submitted that the plaintiff has denied her thumb impression on the compromise which was effected before the Sub-Divisional Officer, Guna, in Case No.42 Appeal Mal/1992-93 in her cross-examination dated 18.8.2015. Similarly, she has denied thumb impression and photograph on the affidavit Ex.D-1 and consent letter Ex.D-2 in para 56 of her cross-examination. It is further averred that the expert be allowed to be examined to give opinion on the thumb impression on the receipt as compared to Ex.D-1, Ex.D-2 and Ex.D-4 so that they can be compared with the specimen thumb impressions of the plaintiff to be obtained by the learned Court. Similarly, permission to produce expert opinion on the photograph of Dauli Bai on Ex.D-1 and Ex.D-2 was sought. The plaintiff has filed reply to the said application and has submitted that Dauli Bai was not the owner of the land in dispute at the relevant time, and therefore, there cannot be any decision on the photograph affixed on the said documents or the thumb impressions. The plaintiff has filed reply to the said application and has submitted that Dauli Bai was not the owner of the land in dispute at the relevant time, and therefore, there cannot be any decision on the photograph affixed on the said documents or the thumb impressions. It has been further submitted that neither the compromise nor the affidavit nor the receipt has been registered under section 17 of the Registration Act and are therefore not admissible. 10. Learned trial Court has held that except affidavit (Ex.D-1), other documents, namely Ex.D-2, Ex.D-3 and Ex.D-4 are not original documents, therefore, in terms of the provisions contained in section 45 of the Evidence Act only Ex.D-1 can be admitted for the opinion of an expert. The learned counsel for the petitioners has submitted that learned trial Court has erred in not accepting the documents Ex.D-2, Ex.D-3 and Ex.D-4 on the ground that their originals were not filed and are not on record. 11. There is no denial to the fact that documents Ex.D-2, Ex.D-3 and Ex.D-4 are not in original and also to the finding of the learned trial Court that as per the provisions of law, an expert can examine the handwriting and thumb impression only from the original documents. It is admitted position that Ex.D-2, Ex.D-3 and Ex.D-4 are the certified copies and not the original documents. It is seen that petitioners did not make any attempt to move an application before the Court for production of original documents from which certified copies of Ex.D-2, Ex.D-3 and Ex.D-4 have been issued, and therefore, in absence of original documents before the learned trial Court, the trial Court was right in rejecting the application under section 45 of the Evidence Act for examination of handwriting/thumb impression on the documents Ex.D-2, Ex.D-3 and Ex.D-4. 12. In view of the aforesaid, the petition being devoid of merits, is hereby dismissed.