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Madhya Pradesh High Court · body

2017 DIGILAW 1245 (MP)

Makhanlal v. Balaram

2017-12-08

PRAKASH SHRIVASTAVA

body2017
ORDER 1. By this writ petition under Article 227 of the Constitution the petitioner has approached this Court challenging the order of the trial Court dated 26.2.2016 whereby the petitioner's application under sections 65 and 66 of the Evidence Act has been rejected. 2. The brief facts are that the petitioner has filed the suit for declaration and permanent injunction with a prayer to declare the sale deed dated 20th June, 2011 as null and void and deliver the possession of the suit property. Pending the suit petitioner had earlier filed an application under section 65 of the Evidence Act which was rejected by the trial Court by order dated 30th September, 2015 on the technical ground of non service of notice to produce the document in terms of section 66. This Court by order dated 19.10.2015 passed in Writ Petition No.7294/2015 had set aside the order of the trial Court with a direction to the trial Court to reconsider the petitioner's prayer in accordance with law. The petitioner thereafter had filed the fresh application under sections 65 and 66 of the Evidence Act which has been rejected by the trial Court by the impugned order. 3. Learned counsel for petitioner submits that the petitioner has produced photocopy of the lease agreement and the trial Court has committed an error of law in refusing the petitioner's prayer to accept it as secondary evidence. 4. As against this, learned counsel for respondents has supported the impugned order. 5. I have heard the learned counsel for parties and perused the record. 6. By way of application under sections 65 and 66 of the Evidence Act the petitioner is seeking to file the photocopy of lease agreement dated 23.4.2011 as secondary evidence with the plea that the original of the lease agreement is with the defendant Suresh. 7. Section 63 of the Evidence Act contains the inclusive definition of secondary evidence and sub-section (2) covers the copies made from the original by mechanical process which in themselves insure the accuracy of the copy, and the copies compared with such copies and sub-section (3) includes copies made from or compared with the original. 8. Section 65 of the Evidence Act provides for the cases in which secondary evidence relating to document may be given. 8. Section 65 of the Evidence Act provides for the cases in which secondary evidence relating to document may be given. Sub-section (a) thereof covers the cases where the original is shown or appear to be in possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it. In respect of the cases covered by this sub-section , in secondary evidence of the contents of the document is admissible. 9. Section 66 relates to the Rule as to notice to produce. Under this rule a previous notice is required to the party in whose possession or power the documents sought to be produced in secondary evidence is. The proviso enumerates the situations when the notice can be dispensed with. 10. When a photocopy of the document is produced, then in order to get the benefit of the section 65, the party concerned is required to lay a factual foundation for giving the secondary evidence. The party concerned may be required to explain the circumstances under which the photocopy was prepared and who was in possession of the original at the time of preparing the same. The secondary evidence must be authenticated by the foundational evidence that copy sought to be produced is in fact true copy of the original. Permitting a party to lead secondary evidence is an exception and not the rule. 11. The supreme Court in the matter of H.Siddiqui (Dead) by Lrs v. A. Ramalingam, [ (2011) 4 SCC 240 ] while considering the issue of admissibility of photocopy of the power of attorney in evidence and in the light of scope of section 65 of the Evidence Act has held : “12. The Provisions of section 65 of the Act 1872 provide for permitting the parties to adduce secondary evidence. However, such a course is subject to a large number of limitations. In a case where original documents are not produced at any time, nor, any factual foundation has been led for giving secondary evidence, it is not permissible for the Court to allow a party to adduce secondary evidence. However, such a course is subject to a large number of limitations. In a case where original documents are not produced at any time, nor, any factual foundation has been led for giving secondary evidence, it is not permissible for the Court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section . The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law. The Court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. (vide Roman Catholic Mission v. The State of Madras, State of Rajasthan and Ors. v. Khemraj., Life Insurance Corporation of India v. Ram Pal Singh Bisen, and M.Chandra v. M.Thangamuthu.” 12. In the matter of U. Sree v. U. Srinivas [ (2013) 2 SCC 114 ], while considering the issue of admissibility of the photocopy of the letter allegedly written by the wife to her father has noted the earlier judgments on the point and has held as under : “14. In this context, we may usefully refer to the decision in Ashok Dulichand v. Madahavlal Dube wherein it has been held that: (SCC p.666, para 7) “7......According to clause (a) of section 65 of the Indian Evidence Act, secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it. Thereafter, the Court addressed to the facts of the case and opined thus : “7.... Thereafter, the Court addressed to the facts of the case and opined thus : “7.... In order to bring his case within the purview of clause (a) of section 65, the appellant filed applications on 4.7.1973, before respondent No.1 was examined as a witness, praying that the said respondent be ordered to produce the original manuscript of which, according to the appellant, he had filed photostat copy. Prayer was also made by the appellant that in case respondent No.1 denied that the said manuscript had been written by him, the photostat copy might be got examined from a handwriting expert. The appellant also filed affidavit in support of his applications. It was, however, nowhere stated in the affidavit that the original document of which the photostat copy had been filed by the appellant was in the possession of respondent No.1. There was also no other material on the record to indicate that the original document was in the possession of respondent No.1. The appellant further failed to explain as to what were the circumstances under which the photostat copy was prepared and who was in possession of the original document at the time its photograph was taken. respondent No.1 in his affidavit denied being in possession of or having anything to do with such a document.” Be it noted, in this backdrop, the High Court had recorded a conclusion that no foundation had been laid by the appellant for leading secondary evidence in the shape of the photostat copy and this Court did not perceive any error in the said analysis. 15. In J. Yashoda v. K. Shobha Rani, after analyzing the language employed in sections 63 and 65(a), a two-Judge Bench held as follows (SCC p.733, para 9) : “9....section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the section .” 16. In M. Chandra v. M. Thangamuthu, It has been held as follows; SCC pp. Secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the section .” 16. In M. Chandra v. M. Thangamuthu, It has been held as follows; SCC pp. 735-36, para 47 : “47....It is true that a party who wishes to rely upon the contents of a document must adduce primary evidence of the contents, and only in the exceptional cases will secondary evidence be admissible. However, if secondary evidence is admissible, it may be adduced in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in another form. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It should be emphasised that the exceptions to the rule requiring primary evidence are designed to provide relief in a case where a party is genuinely unable to produce the original through no fault of that party.” 17. Recently, in H. Siddiqui v. A. Ramalingam, while dealing with section 65 of the Evidence Act, this Court opined though the said provision permits the parties to adduce secondary evidence, yet such a course is subject to a large number of limitations. “12....In a case where the original documents are not produced at any time, nor has any factual foundation been laid for giving secondary evidence, it is not permissible for the Court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original.” (H. Siddiqui case, SCC pp.244-45, para 12). It has been further held that mere admission of a document in evidence does not amount to its proof. Therefore, it is the obligation of the Court to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. 18. It has been further held that mere admission of a document in evidence does not amount to its proof. Therefore, it is the obligation of the Court to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. 18. In the case at hand, the learned Family Judge has really not discussed anything relating to foundational evidence. The High Court has only mentioned that when the letter was summoned and there was a denial, the secondary evidence is admissible. In our considered opinion, such a view is neither legally sound nor in consonance with the pronouncements of this Court and, accordingly, we have no hesitation in dislodging the finding on that score.” 13. Same is the view taken by this Court in the matter of Ramrao Karuji Baghale v. Natthu son of Karuji Baghale and Or AIR 2011 MP 195 . This Court in the matter of Aneeta w/o Ramkesh Rajpoot v. Saraswati w/o Chhatradhari Gupta [(2012)4 MPLJ 56], has held that for admitting the document as secondary evidence not only the satisfaction of section 65 is required, but it is also required that photocopy was compared with the original in terms of section 63(3). 14. Having examined the present case in the light of the aforesaid judgment, it is noticed that the trial Court has rejected the petitioner's application on the ground that the photocopy of the lease agreement sought to be produced in secondary evidence is neither the certified copy of the original nor they are the copies prepared from original by mechanical process and compared with the original. The application filed by the petitioner reveals that no factual foundation was laid by the petitioner in respect of the preparation of the photocopy from the original, comparing the copy with the original or its preparation by such mechanical process which ensures the accuracy of the copy. 15. The application filed by the petitioner reveals that no factual foundation was laid by the petitioner in respect of the preparation of the photocopy from the original, comparing the copy with the original or its preparation by such mechanical process which ensures the accuracy of the copy. 15. Counsel for petitioner has placed reliance upon the judgment of the supreme Court in the matter of Rakesh Mohindra v. Anita Beri and others, [(2016)6 SCC 483], but in that case the permission was sought to prove the letter of disclaimer by way of secondary evidence and for that purpose the record of GLR from the office of DEO, Ambala who is said to be the custodian of the record was summoned and the person concerned who had produced the original record was examined and on the basis of the evidence of the witness who had produced the record and the evidence of the defendant, the trial Court had allowed the application and admitted the letter of disclaimer to be used as secondary evidence, but the present case stands on different factual footing. 16. Counsel for petitioner has also placed reliance upon the judgment of the supreme Court in the matter of Nawab Singh v. Inderjit Kaur, [ AIR 1999 SC 1668 ], but in that case the prayer was rejected by the trial Court on untenable ground. He has also placed reliance upon the judgment of this Court in the matter of Jethalal v. Jinendra Kumar [2001(1) MPWN 31], but in that case the plaintiff had contended that the original document was in favour of one Samratmal and this Court had opined that after Samratmal had refused to produce the original for some reason or the other, the plaintiff would be entitled to produce the document in his possession as secondary evidence. Since these judgments stand on different factual footing, therefore, no benefit can be derived by the petitioner from them. 17. Having regard to the aforesaid, I am of the opinion that no error has been committed by the trial Court in rejecting the petitioner's application. 18. Even otherwise the scope of interference in exercise of jurisdiction under Article 227 of the Constitution is limited. 17. Having regard to the aforesaid, I am of the opinion that no error has been committed by the trial Court in rejecting the petitioner's application. 18. Even otherwise the scope of interference in exercise of jurisdiction under Article 227 of the Constitution is limited. Supreme Court in the matter of Jai Singh and others v. Municipal Corporation of Delhi and another, reported in 2010(9) SCC 385 while considering the scope of interference under Article 227 of the Constitution, has held that the jurisdiction under Article 227 cannot be exercised to correct all errors of judgment of a Court, or tribunal acting within the limits of its jurisdiction. Correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. 19. Having regard to the aforesaid and considering the fact that no patent illegality has been committed by the trial Court in passing the impugned order, I am of the opinion that no case for interference is made out. The writ petition is accordingly dismissed.