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2018 DIGILAW 561 (MP)

Ram Prasad v. Sonkaliya

2018-06-27

SANJAY DWIVEDI

body2018
ORDER 1. Heard on admission. 2. The petitioners by way of instant petition are assailing the order dated 18.08.2017 (Annexure P-8) passed in Civil Suit No.18-A/2010 by the 1st, Civil Judge, Class-1, Deosar, District Singrauli whereby the application filed by the petitioners under Order VIII Rule 1 of CPC has been rejected. 3. Learned counsel for the petitioners submits that the petitioners have moved the said application before the trial Court for exhibiting the photocopy of the documents. He further submits that the application has been rejected by the trial Court on the ground that photocopy cannot be exhibited. It is also canvassed that the trial Court itself sent the original documents before the Collector for impounding, which were not received back. Thus, in the absence of original documents, the petitioners sought the photocopy of the documents to be exhibited. However, the same could not have been denied by the trial Court treating the same as secondary evidence. 4. Refuting the claim of the petitioners, learned counsel for respondents No.1 to 3 submits that the learned trial Court rightly rejected the application for granting permission to exhibit the photocopy of the documents and also treating it as a secondary evidence. To bolster his contention, he has placed reliance on a judgment of the Division Bench of this Court in case of Vijay Choudhary v. Union of India and others [ 2010(1) MPHT 435 (DB)] wherein it has been held that photocopy cannot permitted to be exhibited nor can it be considered as secondary evidence. 5. I have heard the rival contentions of the parties and meticulously perused the record. 6. From the order-sheet dated 4.2.2017 of the Court below, it transpires that in view of the provisions of section 38 of the Indian Stamp Act, 1899 (for brevity “Act of 1899”), the original documents submitted by the defendants/petitioners were forwarded to the Collector of Stamp for impounding with a direction that the documents be returned back to the Court after completing the due process of impounding. It is thereafter, the defendants/petitioners moved an application under Order VIII Rule 1 of CPC read with section 65 of the Indian Evidence Act, 1872 asking the Court to permit him to exhibit the photocopy of the documents as the original documents have been forwarded by the Court to the Collector of Stamp and those were not returned back. It is thereafter, the defendants/petitioners moved an application under Order VIII Rule 1 of CPC read with section 65 of the Indian Evidence Act, 1872 asking the Court to permit him to exhibit the photocopy of the documents as the original documents have been forwarded by the Court to the Collector of Stamp and those were not returned back. The trial Court rejected the said application saying that the photocopy cannot be permitted to be exhibited and also rightly not allowed to treat those documents as secondary evidence. The judgment relied upon by the learned counsel for the respondents in the case of Vijay Choudhary (supra), is of no help to the espondents as the same is distinguishable on the fact situation of the present case. 7. In view of the above, it is appropriate to direct the Court below to ask the Collector of Stamp to return the original documents already forwarded by the Court for impounding as he is duty bound to return the same after completing the proceedings of impounding and that in the absence of those original documents, the defendants-petitioners would not be in a position to get the same exhibited during the course of evidence. Thus, it is for the Court below to ask the authority to return those documents to the Court so that the defendants could complete their evidence and take defence in proper manner. The order impugned is, therefore, set aside with a liberty to the petitioners to move appropriate application before the Court below for seeking direction to the authority, which has received the original documents for impounding. On the same being done, the Court below shall pursue the same so that those documents may be returned to the Court and after receiving those documents, the trial Court shall further proceed with the case in accordance with law. 8. In the above terms, the petition is disposed of.