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2018 DIGILAW 1751 (PAT)

Abdul Rahman v. Md. Karu

2018-11-30

PRABHAT KUMAR JHA

body2018
ORDER : Prabhat Kumar Jha, J. Heard both sides. 2. The petitioners have filed this civil miscellaneous petition against the order dated 26.10.2016 as well as against the order dated 01.09.2016, passed by learned Sub-Judge, Baisi, Purnea in Title Suit No.158 of 2001 by which the petition of the petitioners for marking the sale deeds dated 23.02.1993, 26.02.1993, 13.04.1998 and 04.03.1998 as exhibits by way of secondary evidence has been rejected. 3. Learned counsel for the petitioners submits that the petition for recalling the order for closing the evidence of the petitioners has been allowed but the petition for marking those sale deeds as exhibits has been rejected. 4. Section 65 of the Evidence Act provides that the Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:- "(a) 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;" 5. Sub-section (a) says 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; 6. The learned counsel for the respondents very fairly submitted that the secondary evidence can be exhibited as evidence after fulfilling the conditions mentioned in Section 65 of the Evidence Act but the plaintiff disputed the existence of the original sale deeds. 7. On consideration of submissions of both sides, I find that in view of the provisions of Section 65 of the Evidence Act if a party files certified copy of any documents or order, the same can be exhibited and marked as exhibit with objection of other side. 7. On consideration of submissions of both sides, I find that in view of the provisions of Section 65 of the Evidence Act if a party files certified copy of any documents or order, the same can be exhibited and marked as exhibit with objection of other side. The evidentiary value of such documents can be looked into at the time of argument of the case and the other side may produce such evidence about the non-existence of such documents or non-execution of the sale deeds on his turn for adducing evidence. Having considered the facts aforesaid, I find that the learned Sub-Judge has committed jurisdictional error by rejecting the petition of the petitioners to mark the sale deeds as exhibits by way of secondary evidence. 8. Accordingly, the order dated 26.10.2016 as well as the order dated 01.09.2016, passed by learned Sub-Judge, Baisi, Purnea in Title Suit No.158 of 2001 are set aside. The learned Sub-Judge, Baisi, Purnea is directed pass order afresh in accordance with law. 9. The civil miscellaneous petition is allowed.