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Madhya Pradesh High Court · body

2018 DIGILAW 238 (MP)

Ashok Kumar v. Nagar Panchayat, Alampur

2018-02-27

ANAND PATHAK

body2018
ORDER 1. The present petition under Article 227 of the Constitution of India has been preferred by the petitioner/plaintiff against the order dated 6.2.2018 passed by trial Court; whereby, the application preferred by the petitioner as plaintiff under section 65 of the Evidence Act, has been rejected. 2. Precisely stated facts of the case are that a suit for declaration of right and permanent injunction was filed by the petitioner/plaintiff in respect of suit property. Written statement was filed by the defendants denying the averments as pleaded in the plaint. It is also pleaded that plaintiff is not the owner of the property. Along with the plaint, copies of several documents were filed by the plaintiff before the trial Court but the original documents of said photocopies were not available and could not be found and therefore, an application for leading secondary evidence under section 65 of the Evidence Act was filed and it was prayed that in respect of the documents mentioned in the list of documents, petitioner/plaintiff be permitted to lead secondary evidence. The defendants contested the said application. trial Court dismissed the aforesaid application, therefore, petitioner/plaintiff is before this Court. 3. According to learned counsel for the petitioner order impugned is passed contrary to the provisions of sections 63 and 66 of the Evidence Act. Existence of original documents were not disputed nor denied by the defendants. Photocopies of the documents were filed alognwith suit but since the original documents were not available,therefore, the application under section 65 of the Evidence Act has been preferred. The impugned order is arbitrary and illegal, therefore, deserves to be set aside. 4. Learned counsel for respondent No. 3/State, opposed the prayer made by the petitioner and prayed for dismissal of the writ petition. 5. Heard. 6. From the perusal of impugned order, it appears that trial Court has considered the fact situation of the case and thereafter had come to the conclusion, whereby, the claim of the petitioner was rejected. Trial Court rightly concluded that the plaintiff has the opportunity to get the certified copy of the documents which are being referred in the application from the Office of respondents being public documents. Similarly, petitioner/plaintiff has not shown any inclination and efforts for getting the same from the Office of Municipal Panchayat. Contents and events of the application do not warrant interference. 7. Similarly, petitioner/plaintiff has not shown any inclination and efforts for getting the same from the Office of Municipal Panchayat. Contents and events of the application do not warrant interference. 7. Once the petitioner/plaintiff has the opportunity to get the certified copy of the documents from the office of respondents then the scope of interference goes. Only by making submissions that documents are misplaced are not sufficient to invoke jurisdiction under section 65 of the Evidence Act. When the alternative remedy is available then trial Court has rightly declined to interfere. 8. Under the limited scope of Article 227 of the Constitution of India, no illegality, perversity or procedural irregularity is being found in the impugned order. Petition being devoid of merits, is hereby dismissed.