Madhya Pradesh High Court
Anandram @ Anand Kumar Sahu vs Gauri Bai on 19 September, 2023
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 19 th OF SEPTEMBER, 2023
MISC. PETITION No. 5365 of 2023
BETWEEN:-
1. ANANDRAM @ ANAND KUMAR SAHU S/O GULLA
SAHU, AGED ABOUT 38 YEARS, OCCUPATION:
HOUSE WORK R/O VILLAGE BORI POST BORI
TEHISL SHAHNAGAR DISTRICT PANNA (M.P)
2. JAGAT S/O ANANDRAM @ ANAND KUMAR SAHU,
AGED ABOUT 16 YEARS, MINOR THROUGH
MOTHER SUMITARANI W/O ANANDRAM @
ANAND KUMAR SAHU AGED ABOUT 34 YEARS
HOUSEWIFE R/O VILLAGE BORI POST BORI
TEHSIL SHAHNAGAR DISTRICT PANNA (M.P)
3. BHAGAT S/O ANANDRAM @ ANAND KUMAR
SAHU, AGED ABOUT 14 YEARS, MINOR THROUGH
MOTHER SUMITARANI W/O ANANDRAM @
ANAND KUMAR SAHU AGED ABOUT 34 YEARS
HOUSEWIFE R/O VILLAGE BORI POST BORI
TEHSIL SHAHNAGAR DISTRICT PANNA (M.P)
4. SUMATRANI D/O PARASNATH W/O ANAND RAM,
AGED ABOUT 35 YEARS, OCCUPATION:
HOUSEWIFE R/O VILLAGE BORI TEHSIL
SHAHNAGAR DISTRICT PANNA (M.P)
.....PETITIONER
(BY SHRI SURYA KUMAR PATEL -ADVOCATE)
AND
1. GAURI BAI W/O GULLA SAHU, AGED ABOUT 58
YE A R S , OCCUPATION: AGRICULTURIST AND
HOUSEWIFE R/O VILLAGE BORI POST BORI
TEHSIL SHAHNAGAR DISTRICT PANNA (M.P)
2. SANTKUMAR @ RAMKUMAR S/O GULLA SAHU,
AGED ABOUT 25 YEARS, OCCUPATION: HOUSE
WORK R/O VILLAGE BORI POST BORI TEHSIL
SHAHNAGAR DISTRICT PANNA (M.P)
Signature Not Verified
Signed by: TARUN KUMAR
SALUNKE
Signing time: 9/20/2023
10:32:44 AM
2
3. KASTURI BAI W/O PARASNATH SAHU, AGED
ABOUT 60 YEARS, OCCUPATION: AGRICULTURE
R/O VILLAGE BAGROAD TEHSIL RAIPURA
DISTRICT PANNA (M.P)
4. KADHORI S/O PARASNATH SAHU, AGED ABOUT 28
Y E A R S , OCCUPATION: AGRICULTURE R/O
VILLAGE BAGROAD TEHSIL RAIPURA DISTRICT
PANNA (M.P)
5. MALTI D/O PARASNATH SAHU W/O RAMCHARAN
SAHU, AGED ABOUT 28 YEARS, OCCUPATION:
HOUSEWIFE R/O VILLAGE BORI TEHSIL
SHAHNAGAR DISTRICT PANNA (M.P)
6. STATE OF MADHYA PRADESH THROUGH
COLLECTOR PANNA DISTRICT PANNA (M.P)
.....RESPONDENTS
(BY SHRI PUNIT SHROTI -GOVERNMENT ADVOCATE FOR
RESPONDENT/STATE)
This petition coming on for admission this day, th e court passed the
following:
ORDER
Petitioner by the instant petition is challenging the order dated 06.07.2023 (Annexure P-1) passed by the court below in pending Civil Suit No. 6A/2020, whereunder the request made by the petitioner/defendant to take the photocopy of the document into evidence and permit to use the same for collateral purpose, has been rejected.
The order has been assailed by the counsel for the petitioner. Although the law is settled, this Court has also decided the issue and already observed that even photocopy cannot be used for collateral purpose. The law laid down by this Court in W.P No. 1352 of 2020 by order dated 02.11.2022 is reproduced as under:-
"10. Considering the submissions made by learned counsel for the petitioners and on perusal of record, this Court is of the opinion that as per the settled legal Signature Not Verified Signed by: TARUN KUMAR SALUNKE Signing time: 9/20/2023 10:32:44 AM 3 position, photocopy of a document is inadmissible in evidence. For the purpose of convenience and taking note of the submission made by learned counsel for the petitioners, Section 65 of the Evidence Act is required to be seen:-
"65. Cases in which secondary evidence relating to documents may be given.--Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:--
(a) When the original is shown or appears to be in the possession or power
--
of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(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;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in [India] to be given in evidence;
(g) when the originals consists of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection. In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible.
In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.
In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents."
11. It is the consistent view of the Supreme Court and also of the High Court that as per Section 65 of the Evidence Act, photocopy is inadmissible in evidence. The High Court in case of Haji Mohd. Islam and another Vs. Asgar Ali and another reported in AIR 2007 MP 157, relying upon various Supreme Court decisions, has considered the impact of Section 65 of the Signature Not Verified Signed by: TARUN KUMAR SALUNKE Signing time: 9/20/2023 10:32:44 AM 4 Evidence Act and held that photocopy without any revelation of sources is not permissible to be tendered as secondary evidence. Further, in the aforesaid case, this Court has relied upon a judgment of Division Bench in the case of Badrunnisa Begum v. Mohamooda Begum reported in AIR 2001 AP 394 wherein the Court has observed as under:-
"11. In this context I may refer with profit to the decision rendered in the case of Badrunnisa Begum v. Mohamooda Begum, AIR 2001 AP 394 wherein he Division Bench after referring to the illustrations made in section 65 of evidence Act has held as under:
"As is seen above, this illustration merely says that when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved or of any person out of reach of or not subject to the process of the Court or of any person legally bound to produce it and when after the notice mentioned in section 66 does not produce it. So, in order to get the benefit under section 65(a) three things have to be shown; (1) that the document is, or appears to be in the possession or power of the person against whom the document is sought to be proved; (2) it is in possession of any person out of reach, or not subject to the process of the Court, or of any person legally bound to produce it; and (3) that even after a notice under section 66 the person who has its custody does not produce it. Section 66 lays down the mode of getting the document before the Court. Under this section the person who wants the document has to give a notice to the person in whose custody the document is, and if no such notice is prescribed under law then a notice which the Court may consider reasonable. Therefore, section 63 of the Evidence Act lays down what can be termed as secondary evidence and section 65 lays down in which situations secondary evidence can be led. Section 65(a) does not in any way make a copy of a copy admissible in evidence as it is barred under section 63."
In the said case, this Court has placed reliance upon a judgment of Supreme Court i.e. United India Assurance Co. Ltd. V. Anbari and others reported in (2000) 10 SCC 523 wherein the Supreme Court has observed as under:-
"3. Learned counsel for the appellant submitted that the point regarding validity of the driver's licence was raised by the appellant before the Motor Accidents Claims Tribunal and the Tribunal in accepting photocopy of a document purporting to be the driver's licence and recording a finding that the driver had a valid licence, has committed a grave error of law. He also submitted that the High Court has not dealt with the said contentions of the appellant and without giving any reason has dismissed the appeal. The Tribunal and also the High Court have failed to appreciate that production of a photocopy was not sufficient to prove that the driver had a valid licence when the fact was challenged by the appellant and genuineness of the photocopy was not admitted by it."
Ultimately, this Court in the aforesaid case in paragraph-14 has observed as under:-
Signature Not Verified Signed by: TARUN KUMAR SALUNKE Signing time: 9/20/2023 10:32:44 AM 5"14. If the obtaining factual matrix is tested on the touchstone of the aforesaid principles of law, the document that has been sought to be tendered as secondary evidence is neither a certified copy nor a true copy indicating endorsement. In my considered view the document does not meet with the requirement of section 65 of the Evidence Act. In the absence of any proof and requirement of law not being satisfied, I am of the considered opinion, the order of the learned trial Judge does not suffer from any infirmity."
12. Further, this Court in a case of Sunil Kumar Sahu Vs. Smt. Awadhrani passed in W.P. No.8224/2010, relying upon a decision of the Supreme Court in case of Hariom Agrawal Vs. Prakash Chand Malviya reported in (2007) 8 SCC 514 has observed as under:-
"Now the question arises whether the document which was insufficiently stamped, a photo-copy of such document can be admitted as secondary evidence. This question has been considered by Apex Court in Hariom Agrawal (supra) wherein the Apex Court considering the question held that:
"10. It is clear from the decisions of this Court and a plain reading of Sections 33,35 and 2(14) of the Act that an instrument which is not duly stamped can be impounded and when the required fee and penalty has been paid for such instrument it can be taken in evidence under Section 35 of the Stamp Act. Sections 33 and 35 are not concerned with any copy of the instrument and party can only be allowed to rely on the document which is an instrument within the meaning of Section 2(14). There is no scope for the inclusion of the document for the purposes of the Stamp Act. Law is now no doubt well settled that copy of the instrument cannot be validated by impounding and this cannot be admitted as secondary evidence under the Stamp Act, 1899."
In view of the aforesaid, the Apex Court has settled the law that the copy of the instrument which was on insufficient stamp cannot be admitted as secondary evidence under Section 65 of the Indian Evidence Act. So the photo-copy of Annexure P-4 was not admissible in the secondary evidence as its original was not adequately stamped. It is also in dispute that no such original is in existence and Annexure P-4 is fabricated one but this question is not decided in this petition."
In view of the aforesaid, trial court erred in granting permission to the respondent No.1 to lead secondary evidence of document Annexure P-4 which is unsustainable under the law and is set aside. This petition is allowed. Petitioner is entitled to costs of this petition from the respondents."
13. Likewise, in a case of Smt. Aneeta Rajpoot Vs. Smt. Saraswati Gupta (W.P. No. 11990/2012), this Court relying upon a decision of the Supreme Court in the case Anbari (supra) has observed as under:-
"14. The Supreme Court in United India Assurance Co. Lted. V. Signature Not Verified Anbari and others 2000(10) SCC 523 while dealing with the Signed by: TARUN KUMAR SALUNKE Signing time: 9/20/2023 10:32:44 AM 6 photocopy of license of a driver expressed the view as under:-
3. Learned counsel for the appellant submitted that the point regarding validity of the driver's licence was raised by the appellant before the Motor Accidents Claims Tribunal and the Tribunal in accepting photocopy of a document purporting to be the driver's licence and recording a finding that the driver had a valid licence, has committed a grave error of law. He also submitted that the High Court has not dealt with the said contention of the appellant and without giving any reason has dismissed the appeal. The Tribunal and also the High Court have failed to appreciate that production of a photocopy was not sufficient to prove that the driver had a valid licence when that fact was challenged by the appellant and genuineness of the photocopy was not admitted by it.
Thus, the Apex Court has held that photocopy was not sufficient to prove that driver had a valid license. By following the aforesaid decision of Supreme Court, Shri Justice Dipak Mishra, J. (as His Lordhship then was) in Haji Mohd. Islam and another Vs. Asgar Ali and another AIR 2007 MP 157 has held that when a photocopy without any reasonable source has been filed, it is not permissible as secondary evidence. Yet there is another decision of this Court in W.P. No. 8224/2010 (Sunil Kumar Sahu Vs. Smt. Awadharani) decided on 31.08.2010 wherein it has been held that photocopy of a document is not admissible as secondary evidence under Section 65 of the Evidence Act."
1 4 . Moreso, in a case of Pravin Vs. Ghanshyam and others (M.P. No. 1144/2017), this Court relying upon a decision of Ratanlal Vs. Kishanlal reported in 2012(3) MPJR 24, has observed as under:-
"In the case of Ratanlal vs. Kishanlal reported in 2012 (III) MPJR 24 this Court has held as under:
"12. According to me the photocopy is neither a primary nor secondary evidence and in this regard decision of this Court Ramesh Verma and others etc. vs. Smt. Lajesh Saxena and others etc. AIR 1998 MP 46 may be seen. Apart from this even if it is stretched to the extent to bring the photocopy of will Ex. P/1 within the sphere of secondary evidence, the plaintiff was required to satisfy the ingredients to Section 65 of the Evidence Act which speaks about the secondary evidence. The plaintiff was further required to examine the person who took out the photocopy of the original. This is very much essential because it is a matter of common knowledge that by putting another writing written on a separate paper if that paper is kept upon the original document and photocopy is taken out, the said photocopy cannot be said to be a true photocopy of the original document."
The photocopy is neither a primary evidence nor secondary because the party is required to prove when and where the photocopy was taken and it is the same and exact copy of the original, therefore, in view of the above law, trial Court has not committed any error while rejecting the application under Section 65 of the Evidence Act."
In view of aforesaid enunciation of law and the facts involved in Signature Not Verified Signed by: TARUN KUMAR SALUNKE Signing time: 9/20/2023 10:32:44 AM 7 the case, this Court is also of the opinion that the original Memorandum which is sought to be produced in evidence and to lead secondary evidence is rightly denied by the Court below because there was no source of information about possession of the original one in favour of Shri M.K. Shrivastava, the counsel earlier engaged by the party. The photocopy of Panchnama/Memorandum is available on record which is creating right in favour of a particular person by transferring title of the land, however, the same indicates that the it is an un-stamped document and as such, it needs registration and proper stamp duty.
15. Nothing is available on record to indicate that the said Panchnama/Memorandum is a valid document as per the requirement of provisions of Registration Act, 1908 and accordingly, it is inadmissible as per the provisions of the Evidence Act. The trial Court in the impugned order, taking note of the provisions of Section 65 of the Evidence Act rejected the application saying that the document which is sought to be taken on record for the purpose of leading secondary evidence is inadmissible until and unless it is compared with the original document. The statement and pleading was not available in this regard even before this Court and as such, the photocopy cannot be used in evidence even for leading the secondary evidence. I find that the trial Court has not committed any error in rejecting the application and, therefore, no interference in the impugned order dated 14.02.2020 (Annexure P/1) is warranted.
16. The petition is therefore, without any substance and is accordingly dismissed."
In view of aforesaid enunciation of law, there is no substance in this petition, accordingly it is dismissed.
(SANJAY DWIVEDI) JUDGE tarun Signature Not Verified Signed by: TARUN KUMAR SALUNKE Signing time: 9/20/2023 10:32:44 AM