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Madhya Pradesh High Court · body

2021 DIGILAW 785 (MP)

Rakesh Kumar Lodhi v. State of M. P.

2021-12-04

ROHIT ARYA

body2021
ORDER 1. This writ petition under Article 227 of the Constitution of India is directed against the order date.22.1.2013 (Annexure P/1), by which the trial Court has allowed the application filed by the plaintiff under section 65 (c) of the Evidence Act for taking the secondary evidence on record. 2. The facts necessary for disposal of the instant writ petition, in nutshell, are to the effect that earlier similar application was filed for taking on record same secondary evidence i.e. certified copy of document, but was rejected on 25.8.2012 with the observation that the plaintiff may apply for certified copy of the document from the office of SDO as the alleged document was said to be an order passed by SDO Basoda on 27.3.1985. It further appears that second application has been filed before the Court below on 29.10.2012 with averment that an application was filed in the office of Collector, the appellate authority. An endorsement has been made by the copying section on the overleaf portion of the application that the original copy of the order i.e. 27.3.1985 is misplaced and not traceable. One certified copy of that order was issued on 1.4.1985. 3. Trial Court by the impugned order has allowed the application under section 65 (c) of the Evidence Act. 4. Shri D.D.Bansal, learned counsel for the petitioner/defendant contends that the trial Court has committed a grave illegality and jurisdictional error while allowing the application for the reason that for want of specific endorsement about the details of the person in whose favour certified copy of the order date.27.3.1985 was issued on 1.4.1985, the photocopy of the document could not have been taken on record as secondary evidence in view of section 63 sub-section (3), illustration (a). For ready reference, section 63 sub-section (3), illustration (a) is quoted below :- “63. Secondary evidence.- Secondary evidence means and includes - (1) -- -- (2) -- -- (3) copies made from or compared with the original; Illustration. (a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original.” Therefore, the document could not have been treated to be a secondary evidence to be taken on record. (a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original.” Therefore, the document could not have been treated to be a secondary evidence to be taken on record. Further elaborating his submission, learned counsel submits that from a careful reading of the afore-quoted provision and illustration, it is vividly clear that unless it is proved that a thing photographed was the original, photograph of an original cannot be accepted as secondary evidence of its contents. In the instant case, unless the authenticity of the certified copy allegedly issued on 1.4.1985 of the document in question and the factum of non-existence of certified copy is established with conclusive proof of possession and availability thereof, the alleged photocopy placed on record could not have been treated to be secondary evidence of the contents of the certified copy (original copy). Hence, the document could not be said to be secondary evidence and consequently, the same could not have been accepted in evidence under section 65 (c) of the Evidence Act. Learned counsel relies upon the judgment of this Court in the case of Gopal Sharma v. Smt. Savitri Devi Ojha reported in 1994 (1) MPWN 192 and Tawar Singh v. Ranjit Singh reported in 2001 (I) MPWN 54 . 5. Per contra, Shri R.K.Upadhyay, learned counsel for the L.Rs. of respondent No.1 relying on the judgment of Hon'ble Supreme Court in the case of S.Saktivel (dead) by L.Rs. v. M.Venugopal Pillai and others reported in AIR 2000 SC 2633 submits that even if the certified copy is not available, the photo copy thereof can be accepted as secondary evidence. 6. This Court has carefully considered the submissions advanced and perused the judgments cited by either party. Before adverting to rival contentions, it is expedient to observe that unless the document sought to be produced satisfies the requirement of secondary evidence as provided for under section 63 of the Evidence Act, the same cannot be taken on record under section 65 (c) of the Evidence Act. The factual matrix in hand undisputedly suggests that the document sought to be produced is neither a certified copy nor copy made from the original by mechanical process, therefore, sections 63 (1) and (2) of the Evidence Act are not applicable. The factual matrix in hand undisputedly suggests that the document sought to be produced is neither a certified copy nor copy made from the original by mechanical process, therefore, sections 63 (1) and (2) of the Evidence Act are not applicable. Photocopy, though, is claimed to be of the certified copy but it is not a copy which can be compared to certified copy, as the certified copy itself is not available, therefore, as a matter of fact, sub-section (3) of section 63 shall have no application. 7. Now the question arises as to the status of the document sought to be produced, which is claimed to be photocopy of the certified copy. True, Hon'ble Supreme Court in the case of S.Saktivel (supra) has ruled that a photocopy of a lost certified copy may be taken as secondary evidence, nevertheless, in that case the certified copy of the document was undisputed and the same was lost. However, in the instant case, such is not the position on facts. It is not the case of the respondent/plaintiff that certified copy was obtained by him and the same is lost. Further the alleged endorsement on the overleaf portion of the application also does not spell out that the certified copy was issued in whose favour. Now neither the source of certified copy nor the factum of certified copy are on record. There is also a serious dispute about the existence of the certified copy. In such circumstances, such document claimed to be a photocopy of certified copy does not qualify the definition of secondary evidence as provided for under section 63 of the Evidence Act. Trial Court has failed to take note of the requirement/ingredients of section 63 of the Evidence Act while accepting the questioned document as secondary evidence. In such circumstances, there appears to be an illegality crept in the impugned order and consequently a jurisdictional error. This Court is of the view that the document could not have been accepted as secondary evidence under section 65 of the Evidence Act. The impugned order dt.22.1.2013 (Annexure P/1) is therefore quashed. 8. Writ Petition, accordingly stands allowed.