Rajasthan High Court - Jodhpur
Ashok Kumar Rawal vs Kapoorchand on 17 July, 2023
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 6171/2023
Shri Ashok Kumar Rawal S/o Nainmalji, Aged About 63 Years,
Resident Of Sadar Bazar, Near Shri Shakti Mata Mandir,
Pindwara, Sirohi, Tehsil Pindwara, District Sirohi.
----Petitioner
Versus
Kapoorchand S/o Dharamchand, Aged About 72 Years, Resident
Of Near Shri Shakti Mata Mandir, Pindwara, Sirohi, Tehsil
Pindwara District Sirohi District Sirohi.
----Respondent
Connected With
S.B. Civil Writ Petition No. 16045/2022
Ashok Kumar Rawal S/o Nainmalji, Aged About 63 Years,
Resident Of Sadar Bazar, Near Shri Shakti Mata Mandir, Pindwar,
Sirohi, Tehsil Pindwara, District - Sirohi.
----Petitioner
Versus
Kapoorchand S/o Dharamchand, Aged About 72 Years, Resident
Of Near Shri Shakti Mata Mandir, Pindwara, Sirohi Tehsil -
Pindwara, District - Sirohi.
----Respondent
For Petitioner(s) : Mr. Shreyansh Mardia
For Respondent(s) : Mr. Abhishek Mehta
Mr. Mohan Singh
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment Reserved on 11/07/2023 Pronounced on 17/07/2023
1. These writ petitions under Articles 226 & 227 of the Constitution of India have been preferred claiming the following reliefs:
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(2 of 9) [CW-6171/2023] S.B. Civil Writ Petition No. 6171/2023:
"It is, therefore, most respectfully prayed that this petition for writ in the nature of certiorari may kindly be allowed and by an appropriate writ, order or direction:
A] The impugned order dated 06.04.2023 [Annex.5] passed by the Trial Court may kindly be quashed and set- aside.
B] Any other appropriate order which this Hon'ble Court deems fit & proper may kindly be passed in favor of petitioner."
S.B. Civil Writ Petition No. 16045/2022:
"It is, therefore, most respectfully prayed that this petition for writ in the nature of certiorari may kindly be allowed and by an appropriate writ, order or direction:
A] The impugned order dated 29.09.2022 [Annex.8] passed by the Trial Court may kindly be quashed and set- aside.
B] The trial court may be directed to remove the documents exhibited as Ex.9 to Ex.16 from the record.
Any other appropriate order which this Hon'ble Court deems fit & proper may kindly be passed in favor of petitioner."
2. In sum and substance, the identicalness in the factual matrix of both the instant petitions, is that the respondent-plaintiff instituted a suit for permanent injunction, eviction, recovery of arrears of rent and mesne profits against the petitioner- defendant before the learned Additional Senior Civil Judge, Abuparvat, District Sirohi in the year 2015, stating therein that the respondent rented out one shop to the petitioner in the year 2006; rent agreement was executed between the parties for the (Downloaded on 12/11/2023 at 02:46:13 AM) (3 of 9) [CW-6171/2023] period from 01.01.2013 to 30.11.2013; thereafter the petitioner neither vacated the premises, nor paid the rent of the premises in question.
3. The marginal variation in the factual matrix of the above- numbered S.B. Civil Writ Petition No.16045/2022 is that during the evidence stage, the respondent moved an application for bringing certain documents on record, as the same were public documents under Section 74 of the Indian Evidence Act, 1872 and the petitioner raised the objection regarding the admissibility of the those documents. The learned Court below on 29.09.2022 rejected the objection of the petitioner and permitted the respondent to mark the documents as exhibits no.9 to 16 and proceeded with the examination. 3.1. On 29.09.2022 itself, the petitioner filed an application for permitting him to lay a challenge to the rejection of its objection in regard to admissibility of the aforesaid documents, which are exhibited by the respondent and also sought some time to conduct the cross-examination; the learned Court below however, vide the impugned order dated 29.09.2022 rejected the said application and allowed the respondent to bring the documents on record.
3.2. Learned counsel for the petitioner submitted that the petitioner was seeking time to permit him to assail the order of the learned Court below before the Hon'ble High Court, which was also mentioned in the application filed by the petitioner, but (Downloaded on 12/11/2023 at 02:46:13 AM) (4 of 9) [CW-6171/2023] despite the same, the learned Court below in an arbitrary manner passed the impugned order against the petitioner and in favour of the respondent.
3.2.1. Learned counsel further submitted that the learned Court below, while permitting the respondent to mark the documents as exhibits, has completely ignored the provisions of the Section 74 of the Indian Evidence Act, 1872, because the said documents were relating to the previous suit, and were not the public documents as per the aforesaid provision. 3.2.2. In support of such submissions, reliance was placed upon the following judgments:-
(a) Baijayanti Nanda Vs Jagannath Mahaprabhu (W.P. (Civil) No. 10286 of 2007, decided on 13.03.2014) passed by Hon'ble High Court of Orissa
(b) Shamlata & Ors. Vs Vishweshwara Tukaram Giripunje & Ors.
(Second. Appeal No. 67 of 1996 decided on 29.01.2008) passed by Hon'ble High Court of Bombay.
3.3. On the other hand, learned counsel appearing on behalf of the respondent, while opposing the aforesaid submissions made on behalf of the petitioner, submitted that the suit was instituted by the respondent in the year 2015, and after a lapse of 7 years, it reached the stage of recording of evidence, and thus, the petitioner filed an application just to delay the proceeding of the suit; hence, the learned Court below has rightly passed the impugned order.
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(5 of 9) [CW-6171/2023] 3.3.1. Learned counsel for the respondent further submitted that the documents permitted to be exhibited by the learned Court below vide impugned order are certified copies of the original documents of the Court record. As per learned counsel, looking into the factual matrix and the conduct of the petitioner so as to cause delay in the trial of the suit, the learned Court below was justified in law in refusing to to grant the time to the petitioner for challenge the order passed by the learned Court below.
3.3.2. It was also submitted that the documents in question being certified copies of the record of the Court, and therefore, they fall under the definition of the public documents as per Section 74 of the Indian Evidence Act, 1872. 3.3.3. In support of such submissions, reliance was placed upon the following judgments:-
(a) Jaswant Singh Vs Gurdev Singh & Ors (Civil Appeal Nos.
8879-8880 of 2011, decided on 21.10.2011) passed by Hon'ble Apex Court;
(b) Pyare Lal Vs Meher Singh & Ors. (C.R. No. 7388 of 2010 decided on 15.12.2010) passed by Hon'ble High Court of Punjab and Haryana.
4. However, apart from the afore-projected common factual matrix, the marginal variation in the pleaded facts of the above- numbered S.B. Civil Writ Petition No. 6171/2023 would reveal that the petitioner filed an application under Section 65 of the Indian Evidence Act, 1872 for proving an agreement dated (Downloaded on 12/11/2023 at 02:46:13 AM) (6 of 9) [CW-6171/2023] 07.04.2000 by way of Secondary Evidence and stated that the original copy of the said agreement was with one Vagaram, who passed away three years ago, and therefore the petitioner could not procure the original copy of the said agreement. 4.1. The learned Court below vide the impugned order dated 06.04.2023 rejected the aforesaid application of the petitioner. 4.2. Learned counsel for the petitioner submitted that the petitioner is entitled to tender a photocopy of the document in question on record by way of Secondary Evidence as per Section 65 (c) of the Indian Evidence Act, 1872.
4.2.1. Learned counsel further submitted that the petitioner also mentioned in the written submission that Late Vagaram was the owner of the premises in question and the agreement had been executed between them. Therefore, the learned Court below passed the impugned order in an arbitrary manner and against the provisions of law.
4.2.3. In support of such submissions, reliance was placed upon the following judgments:-
(a) Nawab Singh Vs Inderjit Kaur (1999) 4 SCC 413, passed by Hon'ble Apex Court;
(b) Keshu Ram & Ors. Vs Sonaki Bai & Ors (S.B. Civil Writ Petition No. 13993/2016, decided on 17.07.2017) passed by Coordinate Bench of the this Hon'ble Court.
4.3. On the other hand, learned counsel appearing on behalf of the respondent, while opposing the aforesaid submissions made on behalf of the petitioner, submitted that the learned Court (Downloaded on 12/11/2023 at 02:46:13 AM) (7 of 9) [CW-6171/2023] below has rightly rejected the application of the petitioner and passed the impugned order because exhibition of a photocopy of the agreement in question cannot be admissible as secondary evidence, unless the precondition and limitation under Section 65 of the Indian Evidence Act, 1872 are fulfilled. 4.3.1. Learned counsel further submitted that the petitioner did not make any effort to procure the original copy of the agreement from the legal representative(s) of Late Vagaram. Therefore, the learned Court below has rightly rejected the application of the petitioner.
4.3.2. In support of such submissions, reliance was placed upon the following judgments:-
(a) H. Siddiqui (Dead) by Lrs Vs A. Ramalingam (2011) 4 SCC 240, passed by Hon'ble Apex Court;
(b) U. Sree Vs U. Srinivas (2013) 2 SCC 114, passed by Hon'ble Apex Court;.
5. Heard learned counsel for the parties as well as perused the record of the case alongwith judgments cited at the Bar.
6. This Court, as regards the above-numbered S.B. Civil Writ petition No. 16045/2022, observes that the respondent instituted the suit in the year 2015 against the petitioner before the learned Court below, during pendency of which, the respondent filed an application seeking exhibition of the certified copies of certain documents, which were in Court's record; to which the petitioner raised an objection; the learned Court below vide the order dated 29.09.2022 allowed the said application of the respondent. On the same day, the petitioner also filed an (Downloaded on 12/11/2023 at 02:46:13 AM) (8 of 9) [CW-6171/2023] application seeking time time to challenge the order dated 29.09.2022 before this Hon'ble Court, but the said application was rejected by the learned Court below.
6.1. This Court further observes that the documents, which were certified copies pertaining to some other suit and issued by the office of the Court itself, and upon being sought to be exhibited by the respondent, were taken on record by the learned Court below, and therefore the learned Court below has rightly rejected the objection as well as application of the petitioner vide orders dated 29.09.2022.
7. As regards, the above-numbered S.B. Civil Writ petition No. 6171/2023, this Court observes that the petitioner filed an application under Section 65 of the Indian Evidence Act, 1872 for exhibiting a photocopy of the agreement dated 07.04.2000 to be admissible as a Secondary Evidence, whereupon the learned Court below vide impugned order dated 06.04.2023 rejected the said application.
7.1. This Court further observes that the suit in question has been pending before the learned Court below against the petitioner for eviction, recovery of arrears of rent, mesne profits and permanent injunction and the premises was let out on rent by Late Vagaram and agreement was executed on 07.04.2000; the agreement was in the custody of Late Vagaram, and since he died, therefore, the original copy of the agreement could not be procured by the petitioner. Thus, the agreement in question falls within the ambit of Section 65 (c) of the Indian Evidence Act, 1872 and ought to be admissible as secondary evidence. (Downloaded on 12/11/2023 at 02:46:13 AM)
(9 of 9) [CW-6171/2023] For ready reference, Section 65 (c) of the Indian Evidence Act, 1872 is reproduced hereunder-:
"Section 65 Cases in which secondary evidence relating to documents may be given.
(c) 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 reasonable time;
In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible."
8. Thus, in light of the aforesaid observations and looking into the factual matrix of the present case, S.B. Civil Writ Petition No. 16045/2022 is dismissed. However, S.B. Civil Writ Petition No. 6171/2023 is allowed, while quashing and setting aside the impugned order dated 06.04.2023 passed by the learned Court below, with a direction to the learned Court below to permit exhibition of the photocopy of the agreement dated 07.04.2000, which shall be admissible as secondary evidence, before the learned Court below. However, it is made clear that any observation made hereinabove shall not affect the merits of the suit in question. All pending application are disposed of.
(DR.PUSHPENDRA SINGH BHATI), J.
SKant/-
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