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2020 DIGILAW 868 (MP)

Anil Kumar v. Madhya Pradesh Rajya Vitt.

2020-09-07

G.S.AHLUWALIA

body2020
ORDER 1. This miscellaneous petition under Article 227 of the Constitution of India has been filed against the order dated 7.5.2018 passed by First Additional District Judge to the Court of First Additional District Judge, Bhind in Civil Suit No. 2/2008, by which the application filed by the petitioners under section 151 of CPC has been rejected. 2. The necessary facts for disposal of the present petition in short are that the petitioners have filed a suit under section 83 of Transfer of Property Act. When the evidence of Anil Kumar Vajpai (DW-1) was being recorded, then photocopies of two documents were marked as Ex. D-6 and D-7. An objection was raised by the petitioners with regard to the admissibility of the photocopies of the documents, then in the deposition-sheet itself, it was observed by the trial Court that this objection shall be considered at the time of final hearing. However, the photocopies of the documents were marked as Ex. D-6 and D-7. When the matter came to the stage of final hearing, then the petitioners filed an application under section 151 of CPC seeking adjudication of his objection with regard to the admissibility of Ex. D-6 and D-7. It was the case of the petitioners that unless and until original document is produced and the photocopy is compared, photocopy cannot be marked as exhibit and if the party wants to lead secondary evidence, then first of all, it has to seek permission of the Court after satisfying the requirements of law. In the present case, since the original documents were never produced before the trial Court at the time of marking of document as exhibit, therefore, Ex. D-6 and D-7 which are the photocopies cannot be read in evidence. The said application under section 151 of CPC was filed on 17.4.2018 and on the next date, i.e., 24.4.2018 counsel for the defendant No. 1 made a prayer to the trial Court for summoning the record of Civil Suit No.7-A/2005 which was decided by judgment and decree dated 26.10.2005 by the First Additional District Judge, Bhind. Later on, a report was received that since the said record has been sent to the High Court due to pendency of first appeal arising out of the judgment and decree dated 26.10.2005 passed in Civil Suit No. 7-A/2005, therefore, the record could not be produced. Later on, a report was received that since the said record has been sent to the High Court due to pendency of first appeal arising out of the judgment and decree dated 26.10.2005 passed in Civil Suit No. 7-A/2005, therefore, the record could not be produced. It appears that thereafter by the impugned order dated 07.05.2018, the trial Court has held that documents were rightly marked as Ex. D-6 and D-7. 3. Challenging the order dated 7.5.2018 passed by the trial Court, it is submitted by the counsel for the petitioners that according to the trial Court, photocopies of the documents which have been marked as Ex. D-6 and D-7 were marked as D-26 and D-22 in Civil Suit No. 7-A/2005 after their due comparison with the original document and, accordingly, photocopies of Ex. D-6 and D-7 have been held to be properly marked as exhibit. It is submitted that it is not the case of the respondents that the original documents of Ex. D6 and D-7 are not available or are not in existence. On the contrary, the defence witness Anil Kumar Vajpai (DW-1) has admitted in paragraph 18 of his cross-examination that the original documents of Ex. D-6, and its enclosures are available in his head office and he had also stated that in case, if he is directed by the Court, then he can produce the same. It was pointed out by this witness that the head office is situated in Indore, whereas this witness had come from Gwalior and that's why he has not brought this document. He further admitted that although the summon to appear before the Court was received about 15 days back, but in spite of that, he did not make any effort to collect the original document from his head office for the reason that those original documents were already produced before the Court in Civil Suit No. 7-A/2005 and the photocopies of the said documents were already exhibited in the other suit. He further admitted that both the suits are different. 4. Per contra, it is submitted by the counsel for the respondents that once the photocopy of the document was already compared and exhibited in a suit, then the photocopies of the exhibits marked in another suit is admissible in another suit as a primary evidence. 5. Considered the submissions made by the counsel for the parties. 6. 4. Per contra, it is submitted by the counsel for the respondents that once the photocopy of the document was already compared and exhibited in a suit, then the photocopies of the exhibits marked in another suit is admissible in another suit as a primary evidence. 5. Considered the submissions made by the counsel for the parties. 6. Counsel for the respondents could not point out any provision of law which makes a photocopy of a document as primary evidence. It is the admission by Anil Kumar (DW-1) that the original of Ex. D-6 and D-7 are available in the head office at Indore. Thus, it is clear that the existence of the original documents of Ex. D-6 and D-7 is not in dispute and they are also in possession of the witness but still he did not bring it for the purposes of their marking as exhibit in the present suit. Further, before tendering the photocopy in evidence, the defendants were under obligation to file an application seeking permission to lead secondary evidence, even that was not done. Furthermore, in order to lead secondary evidence, the concerning party must plead and prove that the original document is neither in his possession or it is not in existence. In the present case, original documents are in possession of the witness but still those were not produced. 7. Under these circumstances, this Court is of the considered opinion that the trial Court committed material illegality by holding that the documents were validly marked as Ex. D-6 and D-7. Accordingly, the order dated 7.5.2018 is hereby set aside. 8. During the cross-examination of Anil Kumar Vajpai (DW-1), an objection with regard to the admissibility of photocopies of the documents was taken, but the trial Court instead of deciding the objection at the very same time, deferred the decision on the objection raised by the petitioners. Therefore, the defendants were deprived of seeking time to produce the original of Ex. D-6 and D-7. Under these circumstances, this Court is of the considered opinion that the respondents must get one opportunity to prove their documents which were marked as Ex. D-6 and D-7 in accordance with law. Therefore, the trial Court is directed to fix the case for production of the original of exhibit D-6 and D-7. D-6 and D-7. Under these circumstances, this Court is of the considered opinion that the respondents must get one opportunity to prove their documents which were marked as Ex. D-6 and D-7 in accordance with law. Therefore, the trial Court is directed to fix the case for production of the original of exhibit D-6 and D-7. It is made clear that only one opportunity shall be granted to the respondents to prove their documents in accordance with law and if the respondents fail to avail that opportunity, then no further opportunity shall be granted to them. Needless to say that if original documents are produced, then the petitioners shall have the right to cross-examine the witness with regard to Ex. D-6 and D-7. 9. With the aforesaid observations, this petition is finally disposed of.