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Madhya Pradesh High Court · body

2023 DIGILAW 17 (MP)

Gopal Meena v. Raghuveer

2023-01-03

G.S.AHLUWALIA

body2023
ORDER 1. This petition under Article 227 of the Constitution of India has been filed against the order dated 14.11.2018 passed by Civil Judge Class-I, Khirkiya, District Harda in Civil Suit No.6-B/2017 by which an application filed by the respondent under section 65(c) of the Evidence Act seeking permission to lead secondary evidence has been allowed. 2. The facts necessary for disposal of the present petition, in short, are that the respondent has filed a suit for recovery of Rs.1,00,000/- on the ground that the petitioner had taken a loan of Rs.1,00,000/- and in lieu of that he had given a Cheque No. 118792 dated 30.7.2015. It was further alleged that the respondent had prayed for payment of money but on one pretext or the other, the petitioner continued to avoid the same. In spite of service of registered notice dated 13.2.2017, neither the reply was sent nor the amount mentioned in the cheque was paid. 3. It appears that the respondent filed an application under section 65(c) of the Evidence Act for seeking permission to lead secondary evidence by producing photocopy of the cheque on the ground that the original cheque has been lost. 4. The said application was vehemently opposed by the petitioner. 5. By the impugned order, the trial Court has allowed the application and has permitted the respondent to lead the secondary evidence. 6. Challenging the order passed by the Court below, it is submitted by counsel for the petitioner that the trial Court has not given any finding as to whether the respondent has succeeded in establishing that the original cheque has been misplaced or not. The trial Court has passed an order merely on the ground that in the case of Mohit Lohiya v. Ramniwas Sharma passed in M.Cr.C. No.1685/2013 , the parties were permitted to lead secondary evidence. It is submitted that every judgement is based on the facts and circumstances of the said case. The trial Court has passed an order merely on the ground that in the case of Mohit Lohiya v. Ramniwas Sharma passed in M.Cr.C. No.1685/2013 , the parties were permitted to lead secondary evidence. It is submitted that every judgement is based on the facts and circumstances of the said case. It is undisputed that in case, if a party succeed in establishing that the original document has been misplaced/lost or succeed in establishing any other eventuality as mentioned in section 65 of the Evidence Act, then the trial Court can allow the said party to lead secondary evidence but the basic question is as to whether the original document has been misplaced/lost or not is to be decided in each and every case which has not been done by the trial Court in the present case. 7. Per contra, the petition is vehemently opposed by counsel for the respondent. It is submitted that the respondent has filed the certain documents including FIR to show that the original cheque has been misplaced/lost and, therefore, he has made out a good case to seek permission for leading secondary evidence. 8. Heard learned counsel for the parties. 9. As per section 65 of the Evidence Act a litigant can be permitted to lead the secondary evidence subject to satisfaction of certain requirements. If, the impugned order is tested, then it is clear that the trial Court has not given any finding with regard to the misplacement of the cheque. Unless and until, the trial Court comes to a conclusion that the case is duly covered by section 65 of the Evidence Act, permission cannot be granted. Since, the trial Court has not given any reason for allowing the application, therefore, the order cannot withstand the judicial scrutiny. 10. As a consequence thereof, the order dated 14.11.2018 passed by Civil Judge Class-I, Khirkiya, District Harda in Civil Suit No.6-B/2017 is hereby set aside. 11. The matter is remanded back to the trial Court to decide the application filed under section 65 of the Evidence Act afresh by giving a specific finding as to whether the respondent has succeeded in establishing that the original document has been misplaced/lost or not? 12. It is needless to mention that while deciding the application the trial Court shall consider each and every ground(s) as well as objection(s) which may be raised by the parties. 13. 12. It is needless to mention that while deciding the application the trial Court shall consider each and every ground(s) as well as objection(s) which may be raised by the parties. 13. With the aforesaid observations, the petition is finally disposed of.