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2018 DIGILAW 103 (RAJ)

Harishanker v. Gomti

2018-01-08

PUSHPENDRA SINGH BHATI

body2018
JUDGMENT : Pushpendra Singh Bhati, J. This writ petition under Article 226/227 of the Constitution of India has been preferred with the following prayers: "1. The order impugned dated 29.09.2016 (Annex.6) passed by learned Civil Judge, Bali, District Pali, may kindly be quashed and set aside. 2. The application filed by the petitioner under Section 65 of the Evidence Act, may kindly be allowed as prayed for. 3. Any other appropriate order, which this Hon'ble Court deems fit and proper in the facts and circumstances of the case, may kindly be passed in favour of the petitioner. 4. Allow cost of the writ petition to the petitioner." 2. The plaintiff/petitioner filed a suit for permanent injunction regarding a plot measuring 35' x 80', which was purchased by him by way of the registered sale deed executed in his favour by one Shri Jethmal. The allegation was that in the year 1989, respondent No. 2 tried to encroach upon the land in question, for which a civil suit was filed, which was decreed against respondent No. 2 on 18.11.1992. 3. The petitioner, thereafter, moved an application under Section 65 of the Evidence Act for permitting him to bring on record the photostat copy of the patta of the disputed property as secondary evidence. 4. Learned counsel for the petitioner has drawn the attention of this Court towards Annexure-4 of the writ petition, which is an application under Section 65 of the Evidence Act, in which the petitioner has admitted that the original owner has lost the patta, and since the original patta was not available, therefore, the photostat copy of the same should be taken on record as a secondary evidence. 5. Learned counsel for the petitioner stated that the learned court below has dismissed the aforesaid application merely on the ground that there was a possibility that the petitioner could produce the same by securing the certified copy of the patta. 6. Learned counsel for the petitioner has refuted the aforesaid observation of the learned court below on the ground that it is an old Jagirdari patta and it is not necessary that such an old patta would be available in the record, and since it was not the current or computerized record, therefore, virtually, it would be impossible that the same is available in the record in question. 7. 7. Learned counsel for the petitioner has further pointed out in his application that he has taken a clear stand for invocation of Section 65(c) of the Evidence Act so as to permit the petitioner to produce the photostat copy of the patta. 8. Learned counsel for the petitioner has also pointed out that the respondent did not choose to file any reply to the said application, and therefore, has not denied the existence of the patta or the facts mentioned in the application, and is merely contesting the case on account of the fact that there was a possibility of obtaining the certified copy of the patta from the record. 9. Learned counsel for the respondents has opposed the submissions made on behalf of the petitioner with the clear plea that Section 66 of the Evidence Act would be applicable and the petitioner was required to give notice to the original owner for procuring the patta in question. 10. Learned counsel for the respondents also argued that the petitioner himself had not made any sincere effort for obtaining the certified copy of the patta, and thus, at this stage, could not be permitted to bring the photostat copy of the patta on record as secondary evidence, as it might lead to unnecessary prejudice of the case in favour of the petitioner. 11. After hearing the learned counsel for the parties as well as perusing the record of the case, this Court is of the opinion that Section 65(c) of the Evidence Act has a clear legislative intention for taking a photostat copy of the original record as secondary evidence, when the original document was lost. 12. It is not disputed by the petitioner that the original document has been lost. The provision of Section 66 of the Evidence Act would not apply on the provision of Section 65(c), which, for ready reference, is quoted hereinbelow:- "65. Cases in which secondary evidence relating to documents may be given.- Secondary evidence may be given of the existence, condition or contents of a document in the following cases- (a)....... (b)....... (c) 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; ................." 13. (b)....... (c) 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; ................." 13. Admittedly, the lost document is the only ground, on which the plaintiff/petitioner has approached the learned court below seeking invocation of Section 65(c) of the Evidence Act. Since the origin of the patta has not been disputed and it is admittedly a Jagirdari patta, which may not be easily available in the record, it would have been appropriate for the learned court below to have allowed the application under Section 65 of the Evidence Act and permit the petitioner to bring on record the photostat copy of the patta as secondary evidence for the matter. 14. In light of the aforesaid observations, the present writ petition is allowed and the impugned order dated 29.09.2016 (Annex.6) passed by learned Civil Judge, Bali, District Pali is quashed and set aside, and the learned court below is directed to take the photostat copy of the patta on record, as per the provisions of Section 65(c) of the Evidence Act.