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Rajasthan High Court · body

2017 DIGILAW 1874 (RAJ)

Narendra Kumar Shrivastava v. Radhakrishna

2017-08-21

PRAKASH GUPTA

body2017
ORDER : Prakash Gupta, J. By the instant writ petition under Article 227 of the Constitution of India, the plaintiffs-petitioners seek to challenge the order dated 7th December, 2013 passed by learned Addl. District Judge No.11, Jaipur Metropolitan in Civil Suit No.278/2012 whereby the application of the plaintiffs-petitioners filed under section 65 of the Indian Evidence Act for producing secondary evidence was dismissed. 2. The relevant facts in brief are that petitioners-plaintiffs filed a Civil Suit for specific performance of the contract, possession, perpetual injunction and mesne profits against the non-petitioner/defendant with regard to plot No.339, Nirmaan Nagar AB, Ajmer Road, Jaipur on the basis of agreement to sale dated 2.6.2007 which is pending in the trial court. 3. During pendency of the suit the petitioners-plaintiffs filed an application under Section 65 of the Evidence Act to allow them to prove the agreement to sale dated 2.6.2007 by way of leading secondary evidence i.e. by producing Photostat copy of the same. The non-petitioner-defendant resisted the application by filing reply to the same. 4. The learned trial court vide a detailed order dated 7th December, 2013 dismissed the application observing that when the original document itself cannot be admitted in evidence, its Photostat copy cannot be admitted in evidence as secondary evidence. 5. Feeling aggrieved, the plaintiffs-petitioners have filed the present writ petition. 6. Heard learned counsel for the parties. 7. It is argued by the learned counsel for the plaintiffs petitioners Mr. Gaurav Sharma that the learned trial court has seriously erred in not appreciating that in reply to the application the defendant-non-petitioner has come with a case that the original of the agreement to sale is probably not in existence. In such circumstances, the photo copy of the document sought to be produced is important, being the material evidence, the same is relevant for the just disposal of the matter and the probity, effect and importance of the document if admitted as secondary evidence can be considered at the time of final hearing and the question as to probity and effect of the document so admitted can be left open by giving reasonable opportunity to the parties to the suit to lead evidence and to submit respective claim and objection. It is further argued that the learned trial court has failed to appreciate the aspect of the case that the provisions to allow secondary evidence are to provide relief in a case where a party is genuinely unable to produce the original without any fault. It is then argued that the learned trial court has further failed to consider this aspect of the case that objection with regard to admissibility of the document could have been decided only after giving reasonable opportunity to the party to give evidence in support of existence of the document. It is also argued that the learned trial court has seriously misinterpreted and misapplied the case law cited by the parties to the lis. However, learned counsel for the petitioner fairly admitted that the document in question is insufficiently stamped. 8. In support of his arguments, learned counsel for the plaintiffs-petitioners placed reliance on the judgment of the Supreme Court in Nawab Singh v. Inderjit Kaur AIR 1999 SC 1668 and the judgment of the Punjab & Haryana High Court in Swarn Singh & Anr. v. Narinder Kaur & Ors. AIR 2002 P&H 40 . 9. On the other hand, it is argued by the learned counsel for the defendant-respondent that in reply to the application, the defendant-respondent has specifically mentioned that no such agreement was executed between the defendant respondent and the plaintiffs-petitioners and the alleged agreement has been prepared by them by forging his signatures. When no such agreement was executed question of availability of such a document does arise and, therefore, the photo copy of the same cannot be allowed to be admitted as secondary evidence. It is also argued that the learned trial court has passed the impugned order after detailed discussions and considering the relevant law. It is further argued that the this Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or to correct errors in drawing inferences or to correct errors of mere formal or technical character. In support of his submissions, learned counsel for the defendant-respondent places reliance on the judgment of the Supreme Court in Hariom Agrawal v. Prakash Chand Malviya (2007) 8 SCC 514 . 10. I have considered the rival submissions and have gone through the case law cited at bar. 11. In support of his submissions, learned counsel for the defendant-respondent places reliance on the judgment of the Supreme Court in Hariom Agrawal v. Prakash Chand Malviya (2007) 8 SCC 514 . 10. I have considered the rival submissions and have gone through the case law cited at bar. 11. In the case of Nawab Singh (supra), leave was sought for by the tenant under Section 65(a) of the Evidence Act for production of copy of rent note on the allegations that the original rent note which in possession of the landlord, was rejected by the trial court on ground that said was of doubtful veracity. The revision petition filed by the tenant in the High Court was also dismissed. On appeal, the Supreme Court allowed the appeal observing as under :- "3. Having heard the learned counsel for the parties, we are of the opinion that the trial court was not justified in rejecting the prayer seeking leave of the court for production of secondary evidence. The prayer has been rejected mainly on the ground that the copy of the rent note sought to be produced by the appellant was of doubtful veracity. The trial court was not justified in forming that opinion without affording the appellant an opportunity of adducing secondary evidence. The appellant has alleged the original rent to be in possession of the respondent. The case was covered by Clause (a) of section 65 of the Indian Evidence Act, 1872. 4. Learned counsel for the respondent submitted that the appellant was protracting the trial and being in possession of the premises was interested in delaying the hearing of the suit. That may or may not be true but the fact remains that that is not the reason on which the rejection by the trial court is founded. In our opinion, the ends of justice would be satisfied if the appellant is allowed an opportunity of adducing secondary evidence but subject to terms. The judgment of Punjab & Haryana High Court in Swarn Singh (supra) is based on the judgment of the Supreme Court in case of Nawab Singh wherein it was held as under:- "9. In view of the position of law explained in the cases decided by our own High Court and the Apex Court noticed earlier, it would be premature to go into the question which had influenced the decision of the learned trial Judge. In view of the position of law explained in the cases decided by our own High Court and the Apex Court noticed earlier, it would be premature to go into the question which had influenced the decision of the learned trial Judge. It is only after the document is produced that the trial Court would be in a position to go into the question as to whether it is unstamped and whether it would be inadmissible in evidence. At this stage, the limited question which arose for determination of the learned trial Judge was whether the petitioner had fulfilled the necessary requirement laid down in section 65(a) of the Indian Evidence Act. In this case, the respondents have not disputed that agreement of exchange was executed and that they have failed to produce the same despite notice. In the given circumstances of the case, the prayer made for leading of secondary evidence on record should not have been disallowed." 12. While in Hariom Agarwal (supra), a Bench of three Hon'ble Judges of the Supreme Court considering admissibility of the document which was not properly stamped in evidence held that instrument not properly stamped was not admissible as evidence and that a photocopy of original instrument cannot be admitted in evidence. It was a case wherein the appellant and respondent executed an agreement whereby landlord tenanted the shop to appellant on payment of advance amount. Respondent filed suit on the ground of bona fide requirement. Appellant produced a photocopy of agreement which was admitted as secondary evidence in the trial court. On appeal, the High Court held that photocopy of agreement cannot be admitted as evidence and that such a document can neither be impounded nor accepted in secondary evidence. In the appeal filed against the judgment of the High Court, the Apex Court held that Photostat copy which was produced as secondary evidence did not show that on the original agreement proper stamp duty was paid and that copy of instrument cannot be validated by impounding and this cannot be admitted as secondary evidence. Referring to Section 35 of the Indian Stamp Act, 1988 it was held that the document which was not properly stamped shall not be admitted in evidence and the appeal was dismissed. 13. Referring to Section 35 of the Indian Stamp Act, 1988 it was held that the document which was not properly stamped shall not be admitted in evidence and the appeal was dismissed. 13. In view of the above, this court is of the view that since the original agreement itself is insufficiently stamped therefore the photo copy of the same is not admissible as secondary evidence. 14. A perusal of the impugned order would reveal that the learned trial court has considered each and every aspect of the matter it has based its order on the judgment of the Supreme Court in Hariom Agarwal (supra). Therefore, the same requires no interference by this Court in exercising the jurisdiction under Article 227 of the Constitution of India. The writ petition being devoid of any merit deserves to be dismissed. Hence, the same is dismissed accordingly.