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2020 DIGILAW 58 (RAJ)

Gulab v. Ramu Ram

2020-01-06

PRAKASH GUPTA

body2020
ORDER : Prakash Gupta, J. 1. Both these writ petitions have been filed against the order dated 12.10.2018 passed by Addl. District & Sessions Judge No. 9, Jaipur District Jaipur in Civil Suit No. 19/2006 and 8/2006 respectively whereby the application filed by the petitioner-defendant (hereinafter referred to as 'the defendant') under Section 65 of the Evidence Act has been dismissed. 2. Facts of the case are that the respondent-plaintiff (hereinafter referred to as 'the plaintiff) filed a Civil Suit against the defendant for declaration, cancellation of registered Gift Deed dated 6.2.2003/5.2.2003 and permanent injunction against the defendants. Summons were issued and the defendants put in appearance. The defendants filed the written statement stating that the disputed property is an ancestral one purchased through Joint Hindu Family Income. The defendant moved an application under Order 11 Rule 12 & 14 CPC for producing the original partition deed, family settlement and map etc. from the plaintiff. The plaintiff filed reply to the said application stating that the said documents were not in his power and possession. The Trial Court vide its order dated 17.7.2017 rejected the said application. Thereafter, the defendant filed an application under Section 65 of the Evidence Act for filing secondary evidence on record. The plaintiff filed reply to the said application. The Trial Court vide its order dated 12.10.2018 dismissed the said application. 3. Hence these writ petitions have been filed. 4. Learned counsel for the defendant submitted that the defendant had already produced the photo copies of the above documents, but he could not get the originals thereof as they are in the power and possession of the plaintiff. The Trial Court, without considering this aspect of the matter, dismissed the applications filed by the defendant. He has further submitted that existence of the original documents was not denied by the plaintiff, therefore, photostat copies of the said documents are genuine and documents ought to be taken on record as secondary evidence. He has further submitted that as per provisions of law, photostat copies of the documents can be allowed to be produced in absence of original documents. The learned trial court has utterly failed to consider this aspect of the matter, therefore, the impugned order is liable to be quashed and set-aside. 5. He has further submitted that as per provisions of law, photostat copies of the documents can be allowed to be produced in absence of original documents. The learned trial court has utterly failed to consider this aspect of the matter, therefore, the impugned order is liable to be quashed and set-aside. 5. In support of his contentions, he has placed reliance on the judgment passed by the Coordinate Bench of this Court in the case of Keshu Ram v. Sonaki Bai reported in 2018 (1) WLC (Raj.) 589. 6. Per Contra, learned counsel for the plaintiff submitted that the documents sought to be filed by the defendant are forged and fabricated, for which the defendant cannot be allowed to lead secondary evidence. He has further submitted that when the existence of the documents is disputed, the defendant cannot be allowed to lead secondary evidence. He has further submitted that the Trial Court, after due consideration of the material on record, has rightly passed the impugned order, which calls for no interference by this Court. 7. Heard. Considered. 8. The Coordinate Bench of this Court in the case of Gordhan Lal Agarwal v. Mali Ram Modi & Anr. reported in 2013 (2) WLC (Raj.) 131 has held as under: "There are limitations of this Court under Article 227 of the Constitution of India in interfering with interlocutory orders passed in the course of a trial. From an analysis of the judgments of the Hon'ble Supreme Court on the scope of the powers under Article 227 of the Constitution of India, the principle that emerges is that the exercise of supervisory jurisdiction would only be available in order to maintain public confidence in the administration of justice and for interference when the orders impugned generated issues of lack or excess of jurisdiction or were vitiated by misdirection in law or perversity of facts leading to manifest injustice to the aggrieved party. In my considered opinion, none of the aforesaid grounds are even remotely made out." 9. A bare look at the petition, as laid before this Court, indicates its casual nature and a routine filing by the defendant. Not even an attempt has been made in the defendant's pleadings or in the course of arguments before this Court to establish the conditionalities for the exercise of powers under Section 65 of the Evidence Act. A bare look at the petition, as laid before this Court, indicates its casual nature and a routine filing by the defendant. Not even an attempt has been made in the defendant's pleadings or in the course of arguments before this Court to establish the conditionalities for the exercise of powers under Section 65 of the Evidence Act. Section 65 of the Evidence Act provides that secondary evidence may be given of the existing conditions or contents of documents as detailed in clause (a) to (g). Not even a whisper has been made as to under which clause of Section 65 of the Act of 1872 the defendant was entitled to lead secondary evidence qua the aforesaid documents. On this ground alone, the application under Section 65 of the Evidence Act filed by the defendant was liable to be dismissed and was rightly dismissed. 10. The Hon'ble Supreme Court in the case of H. Siddiqui v. A. Ramalingam 2011 (1) WLC (SC) Civil 475 has held that the provision of Section 65 of the Act of 1872 provides for permitting the parties to adduce secondary evidence. However, such a course is subjected to a large number of limitations. In a case where the existence of original documents is disputed and their genuineness is doubted and no factual foundation has been led for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible until the non production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. 11. The judgment passed by the Coordinate Bench of this Court in the case of Kushu Ram v. Sonaki Bai(supra) is not applicable to this case for the reason that the photostat copy of the document sought to be filed as secondary evidence, was a copy obtained by mechanical process and the authenticity thereof was not doubted. 12. In view of the limited supervisory jurisdiction of this Court under Article 227 of the Constitution of India, as observed above by the Coordinate Bench of this Court in the case of Gordhan Lal Agarwal v. Mali Ram Modi & Anr. 12. In view of the limited supervisory jurisdiction of this Court under Article 227 of the Constitution of India, as observed above by the Coordinate Bench of this Court in the case of Gordhan Lal Agarwal v. Mali Ram Modi & Anr. (supra), I find no force in these petitions and the same stand dismissed accordingly. 13. Registry is directed to place a copy of this order in the connected file.