Madhya Pradesh High Court
Pankajlata Gupta vs Vijay Kumar Gupta on 23 November, 2017
1
W.P.No.4780/2016 (Vijay Kumar Gupta Vs. Pankjlata Gupta & others)
&
W.P.No.6482/2016 (Pankjlata Gupta & others Vs. Vijay Kumar Gupta & antr.,)
Indore, Dated: 23/11/2017
Shri Kuldeep Pathak, learned counsel for the petitioner in
W.P.No.4780/2016 and respondent No.1 in W.P.No.6482/2016.
Ms. Archana Kher, learned counsel for the respondents No.1 to 3 in W.P.No.4780/2016 and petitioners in W.P.No.6482/2016.
Shri Mukesh Parwal, learned Government Advocate for the respondent/State in both the cases.
Both; W.P.Nos.4780/16 & 6482/2016 [hereinafter referred to as 'writ petition (a)' and 'writ petition (b)'] under Article 227 of the Constitution of India by plaintiff and the defendants No.1 to 3; have been preferred taking exception to the order passed by the trial Court dated 12/05/2016 in civil suit No.1A/2015.
2. Writ petition (a) has been filed by the plaintiff taking exception to that part of the aforesaid impugned order dismissing the application filed under Order 26 rule 9 CPC and also dismissing the application filed under Order 7 rule 14(3) CPC.
3. Writ petition (b) has been filed by the defendants taking exception to that part of the aforesaid impugned order allowing the application filed by the plaintiff/respondent No.1 under section 65 of the Evidence Act granting leave to lead secondary evidence as regards certain documents.
4. Learned counsel for the petitioner in writ petition (a) contends that the trial Court has committed grave illegality while rejecting the application filed under Order 26 rule 9 CPC as by calling the demarcation report, the trial Court could have reached the conclusion that the copy though certified in nature of trace naksha produced by the defendants/respondents is misleading and factually incorrect. That has not been done.
5. Admittedly, trial is yet to begin. Under such circumstances, the trial Court has reached the conclusion that calling for commissioner's report in the form of demarcation report in the context of the dispute between the parties shall tantamount to collection of evidence. Besides, it is not a suit for boundary dispute but for recovery of 2 W.P.No.4780/2016 (Vijay Kumar Gupta Vs. Pankjlata Gupta & others) & W.P.No.6482/2016 (Pankjlata Gupta & others Vs. Vijay Kumar Gupta & antr.,) possession and mesne profits. Accordingly, rejected the application.
6. In the opinion of this Court, the trial Court was justified while rejecting the application for the reason that the same may tantamount to collection of evidence but not for the reason that the suit is not related to boundary dispute but, only for recovery of possession and mesne profits. I say so for the reason that in the event the plaintiff succeeds in the suit and a decree for recovery of possession and mesne profits has to be ordered of the area described in the map attached with the plaint, the trial Court has to arrive at confirmed boundaries of the suit land. Hence, there is no illegality or jurisdictional error warranting interference by this Court in the impugned order at this stage; however, liberty is granted to either party to file an appropriate application if an occasion so warrants after parties lead evidence. The trial Court shall be free to decide the same on its own merits, regard being had to the facts and circumstances of the case and the mandate contained under Order 26 rule 9 CPC.
7. As regards challenge to rejection of the application under Order 7 rule 14(3) CPC is concerned, the trial Court has justified rejection of the application on the ground that the plaintiff failed to describe the particulars in the list of documents filed and also failed to submit the same at the time of institution of the suit as well as no reasons have been assigned for not filing the same at the time of institution of the suit.
8. In the opinion of this Court, the relevant consideration for the trial Court under Order 7 rule 14(3) CPC was to address upon the relevancy of the evidence qua the pleadings while granting leave to file the documents. Such course of action has not been followed by the trial Court. As such, that part of the impugned order cannot be sustained as the same suffers from patent jurisdictional error. Hence, it is set aside. The trial Court is directed to reconsider the application filed by the plaintiff under Order 7 rule 14(3) CPC regard being had to the pleadings in the plaint and pass a reasoned order. However, it is 3 W.P.No.4780/2016 (Vijay Kumar Gupta Vs. Pankjlata Gupta & others) & W.P.No.6482/2016 (Pankjlata Gupta & others Vs. Vijay Kumar Gupta & antr.,) observed that this Court has not expressed any opinion on merits of the case.
9. Accordingly, writ petition (a) allowed in part and stands disposed of with the aforesaid observation.
10. As regards challenge to the impugned order in writ petition (b) by the defendants allowing the application filed by the plaintiff under section 65 of the Evidence Act (for short, 'the Act') on the premise that certified copy of the sale deed is not a public document, therefore, the same was not admissible under section 65 of the Act, it is necessary to refer to section 63 which defines secondary evidence, section 65 providing for admissibility of secondary evidence, section 76 dealing with certified copies of a document and section 77, the proof of documents by production of certified copies.
11. The trial Court relying upon the provisions of section 76 of the Act and section 60(2) of the Registration Act has held the aforesaid document filed by the plaintiff is admissible in secondary evidence.
12. Learned counsel for the defendants/petitioners in writ petition
(b) relying upon the judgment of the Hon'ble Supreme Court in the cases of Rekha wd/o Vijay Singh Rana and others Vs. Smt. Ratanashree w/o Rajendra Kumar Jain, 2006(1) MPLJ & H.Siddiqui (dead) by LRs., Vs. A.Ramalingam, 2011(3) MPLJ 83 and this Court in the case of Dalso Bai Vs. Halko Bai and others, 2008(2) MPLJ 180 submits that certified copy of sale deed is not a public document, therefore, the same cannot be admissible under section 65 of the Act.
13. Upon perusal of the judgment of the Hon'ble Surpeme Court in the case of Rekha wd/o Vijay Singh Rana and others (supra), in the opinion of this Court, the aforesaid contention is not correct in law as the certified copy of a registered sale deed obtained from the office of Registrar (Stamps) is a public document which is admissible in secondary evidence as regards its contents; if not the factum of execution as held by the Hon'ble Supreme Court; paragraph 15 thereof quoted below:
4W.P.No.4780/2016 (Vijay Kumar Gupta Vs. Pankjlata Gupta & others) & W.P.No.6482/2016 (Pankjlata Gupta & others Vs. Vijay Kumar Gupta & antr.,) "We have already held that a certified copy of a registered instrument/document issued by the Registering Officer, by copying from Book is a certified copy of a public document. It can therefore be produced in proof the contents of the public document or part of public document of which purports to be a copy. It can be produced as secondary evidence of the public document (entries in Book I), under section 65(e) read with section 77 of the Evidence Act without anything more. No foundation need be laid for production of certified copy of secondary evidence under section 65(e) or (f). But then it will only prove the contents of the original document, and not be proof of execution of original document. [Vide section 57(5) of Registration Act read with section 77 of the Evidence Act]. This is because registration of a document is proof that someone purporting to be 'X' the executant admitted execution, but is not proof that 'X' executed the document.............."
14. Accordingly, there is no illegality or jurisdictional error as regards that part of the order impugned in writ petition (b) warranting interference by this Court. Hence, writ petition (b) sans merit and is hereby dismissed.
15. A copy of order be placed in the connected writ petition (b).
(Rohit Arya)
b/- Judge
MVR Digitally signed by M V R BALAJI SARMA
DN: c=IN, o=HIGH COURT OF MADHYA
PRADESH INDORE, postalCode=452001,
BALAJI
st=Madhya Pradesh,
2.5.4.20=dfd648b7a72175dda734ea3f09b63 7e5485763880c50c1966cbd24d7e7cdfee0, 2.5.4.45=032100257F82CA97352F5A6F6E27 0FAFC6A036F71F4CF934D7DC3C1F18C329 SARMA 440EAAEB, cn=M V R BALAJI SARMA Date: 2017.11.24 15:47:33 +05'30'