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2022 DIGILAW 1163 (JHR)

Muni Devi v. Kamal Singh @ Kamal Prasad Singh

2022-09-14

RAJESH SHANKAR

body2022
ORDER : The present C.M.P. has been filed for quashing/setting aside the order dated 08.12.2021 (Anneuxre-7 to the writ petition) passed by the Civil Judge (Sr. Division)-I, Dhanbad in Original Suit No. 78 of 2018 whereby the petition dated 07.09.2021 filed on behalf of the plaintiffs/petitioners under Sections 63 & 65 of the Indian Evidence Act, 1872 (in short, “the Act, 1872”) for taking documents in question as secondary evidence, has been rejected. 2. Heard learned counsel for the petitioners and perused the content of the C.M.P. including the impugned order dated 08.12.2021 passed by the Civil Judge (Sr. Division)-I, Dhanbad in Original Suit No. 78 of 2018. 3. It appears that the plaintiffs/petitioners produced photocopies of Khata No.-02 and Khata No.-07 of Mouza Pipratand No. 91 as well as certificates dated 26.02.2020 and 09.09.2016 issued by the Record Room, Dhanbad Collectoriate before the court below and sought to exhibit the same as secondary evidence. 4. On perusal of copies of requisitions dated 20.02.2020 and 04.07.2016 for obtaining certified copies of the said documents (annexed as Annexure-5 to the present C.M.P.), it appears that the In-charge Officer of the District Record Room, Dhanbad Collectoriate, Dhanbad has clearly mentioned on the back of the same that since the “Khatiyan/Terij” of the concerned Thana and Khata are in torn condition, it is not possible to issue certified copies of the said documents. 5. Section 64 of the Act, 1872 provides that documents must be proved by primary evidence except in the cases mentioned in Section 65 wherein some conditions have been provided under which secondary evidence relating to documents may be given. In view of Section 65 (c), the secondary evidence is admissible when the original has been destroyed or lost or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in a reasonable time. Section 63 provides about the documents which shall mean and include as secondary evidence. In illustration (a) of the said Section, it has been clarified that a photocopy of an original is secondary evidence of its content, though both have not been compared, if it is proved that the document photocopied was the original. 6. Section 63 provides about the documents which shall mean and include as secondary evidence. In illustration (a) of the said Section, it has been clarified that a photocopy of an original is secondary evidence of its content, though both have not been compared, if it is proved that the document photocopied was the original. 6. In the case in hand, though the petitioners produced photocopies of Khata No.-02 and Khata No.-07 of Mouza Pipratand No. 91 and prayed before the trial court for taking those as secondary evidence, however failed to show that the said photocopied documents were the original which is condition precedent for taking it as secondary evidence. Since the certified copy of the said documents could not be provided by the District Record Room, Dhanbad Collectoriate, the petitioners are not entitled to claim for adducing photocopy of the said documents as secondary evidence. A document is admissible as secondary evidence only when the same satisfies any of the conditions mentioned in Section 63 of the Act, 1872 and not otherwise. Moreover, the petitioners failed to show before the trial court as to under what circumstance, the photocopies of the said documents were prepared. In the said circumstance, the aforesaid documents sought to be exhibited on behalf of the plaintiffs/petitioners as secondary evidence cannot be said to be admissible. 7. Hence, the concerned court below vide impugned order dated 08.12.2021 has rightly rejected the petition dated 07.09.2021 filed on behalf of the plaintiffs/petitioners under Sections 63 and 65 of the Act, 1872. 8. The present C.M.P. being devoid of merit, is accordingly dismissed.