Madhya Pradesh High Court
Narsingh vs Shripat Singh on 26 September, 2014
W.P.4635/2011 1
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
JUSTICE SUJOY PAUL.
Writ Petition No.4635/11
Narsingh & Others
Vs.
Shripat Singh & Others
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Shri Santosh Agrawal, Advocate for the petitioner.
Shri S.S.Kushwaha, Advocate for the respondents.
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ORDER
( 26 / 09 /2014) This petition filed under Article 227 of the Constitution is directed against the order dated 25.4.2011 passed by 4th Civil Judge, Class-II, Bhind in Case No. 42-A/2009, whereby the application of the petitioners/defendants preferred under Section 65 and 66 of the Evidence Act is rejected by the Court below.
2. In a suit for declaration and permanent injunction, the petitioners entered appearance and filed their written statements. Thereafter, they preferred application under Section 65 and 66 of the Evidence Act stating that on 12.6.2004 the meeting of Gram Panchayat, Ehrolighat was convened. A resolution was passed in the said meeting whereby the partition between parties was accepted. By placing photocopy of the said resolution, it is stated that the original of said resolution has been removed from concerned register of the Gram Panchayat and, therefore, this photocopy be treated as secondary evidence.
3. The plaintiffs filed its reply dated 5.4.2011. It is stated that the plaintiffs have never signed any partition deed. The photocopy is a fabricated document. It is prayed by the plaintiffs that photocopy is not admissible in evidence and the same be rejected.
4. Shri Santosh Agrawal, learned counsel for the petitioners relied on Section 63 and 65(c) of the Evidence Act. It is argued that the photocopy is admissible in evidence in the case where the original has been removed by the officers of said Panchayat with the connivance of plaintiffs.
W.P.4635/2011 25. Per contra, Shri S.S.Kushwaha, learned counsel for the plaintiffs supported the order. He relied on the statement of Secretary, Gram Panchayat (PW-1), who stated that on 12.6.2004 no meeting of said Panchayat had taken place, nor any resolution was passed. He stated that when the existence of original is not established, the photocopy cannot be admitted as secondary evidence. No other points are pressed by the parties.
6. I have bestowed my anxious consideration on the rival contentions of the parties and perused the record.
Section 63 of Evidence Act reads as under:-
"Secondary Evidence means and includes-- Certified copies given under the provisions hereinafter contained;
Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;
Copies made from or compared with the original;
Counterparts of documents as against the parties who did not execute them;
Oral accounts of the contents of a document given by some person who has himself seen it."
Section 65 (c) reads as under:-
"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;"
7. Section 63 makes it clear that only such copies which are made from the original by mechanical process and which were compared with the original can be treated as secondary evidence. The secondary evidence itself must be of the nature described in Section 63. The photocopy of a document will not be admissible under Section 63 unless it is shown that it had been made from or compared with the original. Another aspect emanates from Section 65 (c) on which heavy reliance is placed by Shri Santosh Agrawal. A plain reading of the said provision shows that secondary evidence is permissible when original has either been 'destroyed' or 'lost'. This aspect is dealt with in Halsbury law in the following manner:-
"Where a document has been lost or destroyed, secondary evidence of its contents is admissible. The W.P.4635/2011 3 court must be satisfied that the document existed, that the loss or destruction has in fact taken place and that reasonable explanation of this has been given. Thus, a bona fide and diligent search must have been made in the place where the instrument would most properly be found, but not necessarily in every possible place; nor need the search have been made recently or for the purpose of the cause."
8. Thus, one has to establish that the photocopy is of a document which actually existed. For this purpose ,there must be sufficient proof of the search for the original to render secondary evidence admissible. It must be established that the party has exhausted all resources and means in search of the documents which were available to him. In the present case, the petitioner has not made any efforts to obtain certified copy of the resolution dated 12.6.2004 from the Gram Panchayat. No copy under the Right to Information Act, 2005 is also prayed for. No complaint regarding alleged loss of said document to the higher authorities is placed on record.
9. The Rajasthan High Court in AIR 1955 Rajasthan 179 (Poonamchand v. Motilal and others) opined as under:-
"Appellant's learned counsel has also referred to a few other documents which are marked Exs.P.3 to P.7. Regarding these documents, it would suffice to say that they are not the original documents. They are only copies. The original documents have not been proved in any manner and, therefore, they are inadmissible in evidence."
10. In AIR 1959 AP 568 (Smt. Bobba Suramma v. Smt. Peddireddi Chandramma), the High Court considered an earlier judgment reported in AIR 1958 AP 418 (Ananta Raghuram v. Rajah Bommadevara) and opined that there must be sufficient proof of the search for the original to render secondary evidence admissible. It must be established that the party has exhausted all resources and means in the search of the document which were available to him. In order to claim the benefits of section 65 of the Indian Evidence Act, there should be credible evidence of the loss of the original.
11. The same view is taken by Calcutta High Court in AIR 1968 Calcutta 532 (M/s Parekh Brothers v. Kartick Chandra W.P.4635/2011 4 Saha and others). This Court in 2009 (III) MPJR 211 (Rajesh Kumar v. Rakesh Kumar & Anr.) opined that in the case at hand no evidence is brought on record to prove the existence of original on which the document dated 14.12.2000 has been prepared and in absence of such evidence, the same cannot be proved by secondary evidence. (para 12).
12. The Apex Court (2013) 10 SCC 758 (Kaliya v. State of Madhya Pradesh) opined that, the secondary evidence of an ordinary document is admissible only and only when the party desirous of admitting it has proved before the court that it was not in his possession or control of it and further, that he has done what could be done to procure the production of it. Thus, the party has to account for the non-production in one of the ways indicated in the section. The party further has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced.
13. In the instant case, the petitioner has miserably failed to prove the existence of the original document. No efforts were made to procure the certified copy of the resolution dated 12.6.2004. In absence of establishing the existence of original, the photocopy cannot be treated as secondary evidence.
14. On the basis of aforesaid analysis, no fault can be found in the order passed by the Court below. The Court below has taken a plausible view which warrants no interference in this petition filed under Article 227 of the Constitution.
15. The petition fails and is hereby dismissed. No cost.
(Sujoy Paul) Judge vv