Madhya Pradesh High Court
Radheshyam Soni vs Rajendra Kumar Soni on 16 February, 2024
Author: Subodh Abhyankar
Bench: Subodh Abhyankar
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
ON THE 16th OF FEBRUARY, 2024
MISC. PETITION No. 7317 of 2023
BETWEEN:-
RADHESHYAM SONI S/O SHRI JAIKISHAN JI
SONI, AGED ABOUT 73 YEARS, OCCUPATION:
1.
BUSINESS 105, CIVIL LINES, DEWAS (MADHYA
PRADESH)
SMT. CHETNA SONI W/O SHRI BASANT SONI,
AGED ABOUT 44 YEARS, OCCUPATION:
2.
HOUSEWIFE 105, CIVIL LINES DEWAS (MADHYA
PRADESH)
.....PETITIONERS
(BY SHRI PRATEEK MAHESHWARI, ADVOCATE)
AND
RAJENDRA KUMAR SONI S/O SHRI
KANHAIYALAL SONI, AGED ABOUT 53 YEARS,
1.
OCCUPATION: BUSINESS 130, SUBHAH CHOWK
DEWAS (MADHYA PRADESH)
SUNIL SONI S/O SHRI KANHAIYALAL SONI,
AGED ABOUT 54 YEARS, OCCUPATION:
2.
BUSINESS 130, SUBHAH CHOWK, DEWAS
(MADHYA PRADESH)
SMT. NIRMALA SONI W/O LATE SHRI ANIL SONI,
AGED ABOUT 53 YEARS, OCCUPATION:
3.
HOUSEWIFE 130, SUBHASH CHOWK, DEWAS
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI VIVEK PHADKE, ADVOCATE)
This petition coming on for admission this day, the court passed the
following:
Signature Not Verified
Signed by: KHEMRAJ JOSHI
Signing time: 3/4/2024
6:41:10 PM
ORDER
1] This misc. petition has been filed by the petitioners/plaintiffs under Article 227 of the Constitution of India against the order dated 24/08/2023, passed in case No.RCSA/102/2020 by Second Additional District Judge, Dewas whereby three applications filed by the defendants/respondents, one under Section 65 of the Evidence Act, 1872 whereas other two applications under Order 8 Rule 1A(3)of CPC have been allowed whereby the defendants had sought to produce the additional documents on record.
2] In brief, the facts of the case are that a civil suit for specific performance of contract has been filed by the plaintiffs in the year 2020, and the aforesaid suit is at the stage of recording of evidence of plaintiffs, and while such evidence was being recorded, the aforesaid three applications were filed by the defendants, one, under Section 65 of the Evidence Act, as the defendants sought to produce the photocopies of certain documents as secondary evidence on the ground that the original documents are lying with the plaintiffs only, whereas, the other application was filed under Order 8 Rule 1A(3) of CPC was filed to bring on record the additional documents which have been mentioned in the application filed under Section 65 of the Evidence Act, and the third such such application under Order 8 Rule 1A(3), was also filed to bring the additional documents on record which were in the form of photocopies of the original. The aforesaid applications have been allowed by the learned Judge of the trial Court vide impugned order dated 24/08/2023, hence, this petition.
3] Shri Prateek Maheshwari, learned counsel for the petitioners/plaintiffs has submitted that the impugned order is bad in law Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 3/4/2024 6:41:10 PM in as much as it has allowed the defendants to bring on record the photocopies of the documents as secondary evidence despite the fact that the provisions of Section 63 of the Evidence Act have not been complied with. Counsel has submitted that otherwise also, the aforesaid documents are forged having prepared on the same set of stamp papers. In support of his submission that the photocopies cannot be relied upon, counsel for the petitioners has also relied upon the decisions rendered by this Court in the case of Narendra Kumar vs. Deepchand and others passed in M.P. No.1971 of 2022 on 06/09/2023 and in the case of Pravin vs. Ghanshyam and others passed in M.P. No.1144/2017 on 23/03/2018. Thus, it is submitted that the impugned order be set aside as the documents which are in the form of photocopies only, cannot be received as secondary evidence.
4] The petition is opposed by Shir Vivek Phadke, learned counsel for the respondents/defendants, and it is submitted that no case for interference is made out as the learned Judge of the trial Court has rightly allowed the applications considering the fact that the original documents are lying with the plaintiffs only. Counsel has also relied upon the decision rendered by the coordinate Bench of this Court in the case of Firm Jethmal Bakhtawarmal throuhg Proprietor vs. Smt. Chandrakanta Jain and others passed in M.P. No.1158 of 2017 on 06/07/2018 and it is submitted that the documents can be brought on record in evidence, however, it can be appreciated by the trial Court at the time of delivery of judgement, as the Supreme Court in the case of Rakesh Mohindra vs. Anita Beri reported as (2016) 16 SCC 483 has held that neither mere admission of a document in evidence amounts to its proof nor mere making of an exhibit of a document dispense with its Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 3/4/2024 6:41:10 PM proof, which is otherwise required to be done in accordance with law. Thus, it is submitted that no case for interference is made out. 5] Heard learned counsel for the parties and perused the documents filed on record.
6] On perusal of the documents filed on record as also the decision relied upon by the counsel for the parties, it is found that this Court has already dealt with in detail the issue of production of photocopies in evidence. In the case of Narendra Kumar (supra), it has been held as under:-
8. Heard, counsel for the parties and perused the record. So far as the admissibility of a photocopy as a secondary evidence is concerned, reference may be had to the decision rendered by the co-
ordinate bench of this court in the case of Dushyant Sharma (supra), the Relevant paragraphs 6, 7, 15 and 16 read as under :-
"(6) Before dealing with the rival contentions of the parties, it is apt to quote the relevant provisions of the Indian Evidence Act, 1872. Section 63(2) reads as under:
"63. Secondary evidence.-- Secondary evidence means and include (1) xxx xxx xxx (2) Copies made from the original by mechanical process which in themselves insure the accuracy of the copy, and copies compared with such copies."
Section 63(a) and (b) (Illustrations) reads as under:
(a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original.
(b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original"
Section 65(c) reads as under: 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) XXX XXX XXX
(b) XXX XXX XXX (7) The arguments of learned counsel for the parties are based on Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 3/4/2024 6:41:10 PM these provisions. Section 63(2) aforesaid makes it obligatory that the copies which are made from the original by mechanical process are required to be compared with such copies. Thus, there is no manner of doubt that two conditions are required to be fulfilled for applying Section 63(2) viz, (i) the copies are made from the original by mechanical process (ii) copies are compared with original copies.
Section 63(Illustration)(a) has no application, in my opinion, in the present matter because the said illustration deals with photographs. Illustration (b) talks about comparing a letter with the original. Thus, a conjoint reading of Section 63(2) with Section 63(Illustration)(c) makes it clear that aforesaid two conditions are necessary to bring a document within the ambit of "secondary evidence".
Section 65(c) is an enabling provision where the original document is lost or destroyed and it is shown that the said event of loss or destroy of the document is not arising out of any default or neglect of the party concerned, the document can be taken as secondary evidence.
XXX XXX XXX XXX (15) On the basis of aforesaid analysis, in my opinion, the court below has not committed any error of law in rejecting the application of the petitioner. The necessary ingredients for treating the documents in question as secondary evidence were not available and application preferred under Section 65 of Evidence Act does not contain necessary averments and declaration on the strength of which the documents could have been treated as secondary evidence.
(16) The last submission of Shri Raghvendra Dixit, learned counsel for the petitioner is based on the definition of "proved" is of no help to him at this stage. The question of treating a document or giving a finding about "proved" would arise provided the documents in question are taken into the evidence. At this stage, this argument is premature."
(Emphasis supplied) 7] On perusal of the application filed by the counsel for the petitioners/plaintiffs under Section 65 of the Evidence Act, and under Order 8 Rule 1A(3)of CPC reveals that the petitioners have nowhere pleaded that how the photocopies have been obtained by them, i.e., whether it was mechanical process or otherwise, mere production of Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 3/4/2024 6:41:10 PM photocopies of the documents would not entail its presumption that it has been obtained as provided under Section 64 of the Evidence Act This Court is of the considered opinion that the learned Judge of the Civil Court has glossed over the aforesaid legal aspect of the matter and has allowed the application only on extraneous reasoning, which in the considered opinion of this Court cannot be said to be a sound enough to allow the respondents to bring on record the photocopies of the documents, the original of which are already lost or non-existent. In such circumstances, the impugned order cannot be sustained in the eyes of law and is hereby set aside.
8] Accordingly, the applications filed by the petitioners under Section 65 of the Evidence Act and under Order 8 Rule 1A(3)of CPC are also hereby rejected. The learned Judge of the trial Court is requested to proceed further in accordance with law.
Petition stands disposed of.
Sd/-
(SUBODH ABHYANKAR) JUDGE krjoshi Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 3/4/2024 6:41:10 PM