Rajasthan High Court - Jodhpur
Mohanlal vs Manbhari & Ors on 20 February, 2013
Author: Gopal Krishan Vyas
Bench: Gopal Krishan Vyas
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
:ORDER :
Mohanlal Vs. Manbhari & Others
(S.B. Civil Writ Petition No.1685/2011)
DATE OF ORDER : February 20, 2013
PRESENT
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
_________________________________________
Mr. Sajjan Singh for the petitioner.
Mr. Vishal Sharma for the respondents.
BY THE COURT :
In the instant writ petition the petitioner has prayed for quashing order dated 27.01.2011 (Annex.-2) passed by the Addl. District Judge, Parbatsar (District Nagaur) and prayed that the application filed by the petitioner-defendant under Section 65 of the Evidence Act may be allowed and photo stat copy of the agreement in question which is said to be unregistered and unstamped may be treated as secondary evidence.
Learned counsel for the petitioner submits that in the suit of partition filed by the respondents No.1 and 2 (plaintiffs) an application was filed by the petitioner-defendant under Order 11 Rules 12 and 14, read with Section 151, C.P.C. with averments that a family settlement was reduced in writing on 25.12.2005 2 and the same is in power and possession of respondent No.2, therefore, for complete adjudication of the present suit the same is required to be taken on record but it was not produced on record by respondent-plaintiff.
In the application, the petitioner also filed affidavits in form-13 of the various persons who are relevant to the said document and neighbours of the petitioner and as such know the petitioner and his family. All these persons categorically stated in their affidavits that family settlement was executed in their presence by which land situated on the ground floor of the old haweli was handed over to the petitioner and land situated in khasra No.592 was handed over to respondent No.2 plaintiff and some of them also put their signatures upon the said document. Therefore, plaintiff-respondent No.2 may be directed to produce that document before the Court.
The plaintiff-respondents filed their reply to the application and alleged that no such family settlement was executed on 25.12.2005, therefore, no occasion remained for custody of the said document with respondent No.2. Learned trial Court rejected the application filed by the petitioner for summoning the document vide order dated 22.11.2010. The petitioner thereafter filed an application under Section 65 of the Evidence Act as the respondent denied the existence of the document, along with photo stat copy of the said document and prayed that permission may be granted to lead secondary evidence.
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Learned trial Court rejected the said application on the ground that the so called photo stat copy of the document is neither registered one nor properly stamped, therefore, no permission can be granted to lead secondary evidence.
Learned counsel for the petitioner submits that the order impugned dated 27.01.2011 is totally illegal because as per Section 17 photo stat copy of the document can be taken on record for collateral purposes even if it is not registered document. Therefore, order impugned may be quashed and application filed by the petitioner under Section 65 of the Evidence Act may be allowed.
Per contra, learned counsel appearing for the respondent submits that there is complete fallacy in the argument of learned counsel for the petitioner because once the application was rejected upon the prayer of the respondent-plaintiff that such document is not in existence, then, there is no question of leading secondary evidence for which finding has already been given by the trial Court that said document is not in existence. Learned counsel for the respondent further submitted that argument of petitioner for treating alleged document as secondary evidence is also not tenable because the document in question is photo stat copy which is not even duly stamped or registered, therefore, the trial Court has rightly rejected the prayer of the petitioner for granting opportunity to lead secondary evidence, in which, there is no illegality. In support of his argument, learned counsel for the respondent invited 4 attention of the Court towards judgment of this Court rendered by the co-ordinate Bench in the case of Ramesh Chandra & Others Vs. Addl. District Judge & Others, reported in AIR 2010 Rajasthan 59.
After hearing learned counsel for the parties, I am of the opinion that once the existence of the document in question itself is not accepted by the Court, then, there is no question of granting any opportunity to lead secondary evidence upon application filed under Section 65 of the Evidence Act. Further, admittedly the document which creates rights of the parties is required to be duly stamped and registered in view of the judgment of the Hon'ble Supreme Court but, in this case, the said document is admittedly not duly stamped and registered. Therefore, no error has been committed by the trial Court in rejecting the prayer of the petitioner made under Section 65 of the Evidence Act for leading secondary evidence.
Hence, this writ petition is hereby dismissed.
(Gopal Krishan Vyas) J.
Ojha, a.