Madhya Pradesh High Court
Ravi Kumar Bajpai vs Smt. Shakuntala Devi on 25 November, 2016
1
WRIT PETITION No.12719/2012
25.11.2016
Shri Imtiyaz Hussain, learned counsel for the petitioner.
Shri Ashish Shroti, learned counsel for respondents.
With consent of learned counsel for the parties the matter is heard finally.
This petition under Article 227 of the Constitution of India, at the instance of plaintiff is directed against the order dated 17.7.2012 passed in Civil Suit No. 390-A/2007; whereby the Trial Court has allowed the respondents/defendants to lead secondary evidence through the xerox copy of affidavit dated 28.5.1995 and will dated 20.6.1997.
The suit at the instance of the petitioner/plaintiff is for declaration, partition, separate possession, mesne profit and permanent injunction. Respondents/defendant Nos. 2, 5 and 6 filed written statement. Whereas, respondent No. 2 has filed a counter claim.
That, an application under Section 65 of the Indian Evidence Act, 1872 came to be filed by respondent Nos. 3, 4 and 7 seeking leave of the Court to prove photo-copies of joint affidavit dated 28.5.1995 and photocopy of will dated 20.6.1997 as secondary evidence. The application was supported by affidavits filed by respondents. The petitioner/plaintiff objected to the same. The Trial Court, however, by impugned order allowed the application for the following reasons:
2^^tgka rd Nk;k izfr;ksa dks f}rh;d lk{; ds #i esa xzkg~; fd;s tkus iz'u gS] bl laca/k esa izfroknhx.k ds fo}ku vf/koDrk dk dguk gS fd ftu nLrkostksa dh Nk;k izfr;ka izdj.k esa izLrqr dh gS] os mlds firk us vius thoudky esa fu"ikfnr fd, Fks vkSj bu nLrkostksa dh Nk;k izfr;ka bUgsa buds firk us gh miyC/k djkbZ Fkh] fdUrq firk ds vpkud e`R;q gks tkus ls bUgsa vly nLrkost ds ckjs esa irk ugha gSa fd og fdlds vkf/kiR; esa gS] mDr ifjfLFkfr;ksa esa ;g U;k;ky; 'kiFk i= fnukafdr 28@5@95 ,oa olh;rukek fnukafdr 20@6@1997 f}rh;d lk{;
ds #i esa xzkg~; djus dh vuqefr fn;k tkuk ;g U;k;ky; mfpr le>rk gS] tgka rd nLrkostksa ds dwVjfpr ,oa QthZ gksus dk iz'u gS ;g lk{; ds izØe ij gh fu/kkZfjr gksukk laHko gSA vr% ckn fopkj izfroknh Øekad 3] 4 o 7 dh vksj ls izLrqr vkosnu i= varxZr /kkjk 65 lk{; vf/kfu;e fnukafdr 4@4@12 Lohdkj fd;k tkdj 'kiFk i= fnukafdr 28@5@95 ,oa olh;rukek fnukafdr 20@6@1997 dh Nk;k izfr;ka vfHkys[k ij yh tkrh gSA^^ Whereas, the petitioner has questioned the impugned order on the anvil of the provisions contained under Section 63 (2) read with Section 65 (c) of the Indian Evidence Act and the decision in United India Insurance Co. Ltd. v. Ambari and others [(2000) 10 SCC 523), Ramesh Verma and others v. Smt. 3 Lajesh Saxena and others (AIR 1998 MP 46), Ratanlal v.
Kishanlal [2012 (1) MPLJ 120], Gwalior Development Authority v. Dushyant Sharma [2013 (II) MPWN 53] and Aneeta Rajput v. Saraswati Gupta [ILR (2013) MP 43] to bring home the submission that unless the photocopy is established to have been prepared after compared from the original and duly compared therewith the same cannot be accepted by way of secondary evidence.
Respondents on their turn refuted the contentions raised on behalf of the petitioner and while relying upon the decision rendered by the Supreme Court in Nawab Singh v. Inderjit Kaur [(1999) 4 SCC 413], Marwari Kumhar and others v. Bhagwanpuri Guru Ganeshpuri and another [(2006) 6 SCC 735] and Smt. Aneeta Rajput v. Smt. Sarswati Gupta [2012 (5) MPHT 381] has to submit that there is no thumb rule that the photocopy of a document cannot be admitted as a secondary evidence.
Considered the rival submissions.
Section 63, Indian Evidence Act, 1872 defines secondary evidence to mean and include (1) Certified copies given under the provisions hereinafter contained; (2) Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies; (3) Copies made from or compared with the original; (4) Counterparts of documents as against the parties who did not 4 execute them; and (5) Oral accounts of the contents of a document given by some person who has himself seen it.
Sub-section (2) of Section 63 which is relevant in the case at hand specifies that, copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies are the secondary evidence. Thus, unless it is established that (a) the copies are made from the original by mechanical process and (b) copies are compared with original documents will not be included under the expression secondary evidence.
Section 65 of the Act of 1872 gives the instances of the cases in which secondary evidence relating to document may be given.
Clause (c) of Section 65 envisages that secondary evidence may be given of the existence, condition, or contents of a document when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason arising from his own default or neglect, produce it in reasonable time.
Thus, the secondary evidence of a document which is lost or difficult to trace can be adduced in two ways, viz., (a) by oral evidence of persons who were present when the document was executed; and (b) by a certified copy of the original document.
In the present case, an application under Section 65 was filed by respondent Nos. 3, 4 and 7 for taking joint affidavit dated 28.5.1995 and joint will dated 20.6.1997 by way of 5 secondary evidence on the contention that the documents have been executed by late Shri Gyan Swaroop Bajpai and Smt. Shakuntala Devi Bajpai, father and mother of respondent Nos. 3 and 4 and grandfather and grandmother of defendant No. 7. It was further contended that the defendants, i.e., defendant Nos. 3, 4 and 7 do not have original in their possession and also that these defendants do not know the particulars of actual custodian of these two original documents. It was contended that late Shri Gyan Swaroop Bajpai in his lifetime delivered to defendant Nos. 3, 4 and 7 the photocopies only an due to sudden demise of Shri Gyan Swaroop Bajpai it was not possible for defendant Nos. 3, 4 and 7 to have the original affidavit and will-deed.
The question is whether the plea on the basis whereof the defendant Nos. 3, 4 and 7 sought the two documents to be taken as secondary evidence stand the test laid down under Section 63 (2) read with Section 65 (c). The respondents have failed to establish that documents which were being brought on record were compared with the original from which it was copied by mechanical process. In this context reference can be had of the decision in United India Insurance Co. Ltd. v. Ambari and others [(2000) 10 SCC 523) wherein their Lordships were pleased to observe:
"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 Accident Claims Tribunal and the Tribunal in accepting photocopy of a document purporting to be the driver's licence and 6 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. Therefore, the judgment and order passed by the High Court in FAO No. 2368 of 1998 deserves to be set aside. We accordingly, allow this appeal and remit the matter back to the High Court for deciding the said appeal afresh after giving an opportunity of hearing to the parties."
In Kalyan Singh, London Trained Cutter v. Smt. Chhoti and others [(1990) 1 SCC 266] it held:
"25. The High Court said, and in our opinion very rightly, that Ex. 3 could not be regarded as secondary evidence. Section 63 of the Evidence Act mentions five kinds of secondary evidences. Clause (1), (2) and (3) refer to copies of documents; clause (4) refers to counterparts of documents and clause (5) refers to oral accounts of the contents of documents. Correctness of certified copies referred to in clause (1) is presumed under Section 79; but that of other copies must be proved by proper evidence. A certified copy of a registered sale deed may be produced as secondary evidence in the absence of the original. But in the present case Ex. 3 is not a certified copy. It is just an 7 ordinary copy. There is also no evidence regarding contents of the original sale deed. Ex. 3 cannot, therefore, be considered as secondary evidence. The appellate Court has a right and duty to exclude such evidence.
In Haji Mohd. Islam and another v. Asgar Ali and another (AIR 2007 MP 157) while dwelling upon the issue as is raised in present petition, His Lordship was pleased to observe:
"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. Decisions relied upon by the petitioner being in the same terms as is being held in United India Insurance Co. Ltd. v. Ambari and others (supra), Kalyan Singh, London Trained Cutter v. Smt. Chhoti and others (supra) and Haji Mohd. Islam and another v. Asgar Ali and another (supra); therefore, the same are not dwelt upon to avoid repetition.
Coming to the decision relied upon on behalf of respondent. In Nawab Singh v. Inderjit Kaur [(1999) 4 SCC 413] their Lordships while dwelling upon the issue were testing an order passed by the Trial Court, which rejected the application for taking photocopy of rent receipt on the ground 8 that the same is of doubtful veracity. Present is not the case where the document is required to be produced by secondary evidence is being rejected on the ground of it being a doubtful veracity. (Merely because one of the ground raised by the party that the documents are forged will not in itself make it admissible). The admissibility of secondary evidence has to be tested on the anvil of the statutory provisions contained under Section 63 (2) read with Section 65 (c) of Indian Evidence Act, 1872. Therefore, the decision in Nawab Singh (supra) is of no assistance to the respondents.
In Marwari Kumhar and others v. Bhagwanpuri Guru Ganeshpuri and another (supra), Their Lordships were dwelling upon the aspect as to whether ordinary copy of judgment whose original and certified copy are lost can be taken by way of secondary evidence. This fact is borne out from paragraph 10 of the judgment, which reads thus:
"10. Thus it is to be seen that under sub-clause (c) of Section 65, where the original has been lost or destroyed, then secondary evidence of the contents of the document is admissible. Sub-clause (c) is independent of sub-clause (f)-Secondary evidence can be led, even of a public document, if the conditions as laid down under sub-clause (c) are fulfilled. Thus if the original of the public document has been lost or destroyed then the secondary evidence can be given even of a public document. This is the law as has been laid down by this Court in Mst. Bibi Aisha and Others v. The 9 Bihar Suhai Sunni Majlis Avaqaf and Others, reported in (AIR 1969 Supreme Court 253). In this case a suit had been filed for setting aside a registered mokarrari lease deed and for restoration of possession of properties. The suit had been filed on behalf of a Waqf. The Original Waqf Deed was lost and an ordinary copy of the Waqf Deed was produced in evidence. The question was whether an ordinary copy was admissible in evidence and whether or not secondary evidence could be led of a public document. The Court held that under section 65 clauses (a) and (c) secondary evidence was admissible. It is held that a case may fall both under clauses (a) or (c) and (f) in which case secondary evidence would be admissible. It was held that clauses (a) and (c) were independent of clause (f) and even an ordinary copy would, therefore, be admissible. As stated above the case that the original was no longer available in Court records and the certified copy was lost has not been disbelieved. Thus the ordinary copy of the earlier judgment was admissible in evidence and had been correctly marked as an exhibit by the trial court."
Evident it is therefrom that Their Lordships were pleased to take note of the law laid down in Mst. Bibi Aisha (supra) that there was an admission on the part of the parties a to existence of original deed of Wakf. This fact would be evident from recital of paragraphs 3 and 4 of the judgment, which is in the following terms:
10"3. The Trial Court and in the High Court Misra J. accepted the testimony of Mehdi Hasan and held that the copy of the original waqfnama was admissible in evidence. We agree with this finding. Tarkeshwarnath J. ruled that the copy was not admissible mainly on the ground that paragraph 7 of the plaint stated that the deed of waqf was in the plaintiff's custody. We agree with Misra J. that the averment in the plaint should be regarded as a general statement referring to the true copy which was left in the plaintiff's office. Under sec. 65(a) of the Evidence Act secondary evidence may be given of the existence, or contents of a document 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, and when after the notice mentioned in sec. 66, such person does not produce it. Where the case falls under s. 65 (a) any secondary evidence of the contents of the document is admissible. In the present case the conditions of s. 65 (a) were satisfied. The plain copy of the waqf was therefore admissible. On behalf of the appellant it was argued, that cl.
(f) of s. 65 was applicable and that as the certified copy of the deed dated August 20, 1827 was permitted by the Evidence Act to be given in evidence, a certified copy alone was admissible in evidence. There is no substance in this contention. If the case falls under clause (a) any secondary evidence of the document is admissible, though the case may also fall under clause (f). Clause (a) is not controlled by clause (f). In the case of A Collision Between The Ava (1879) ILR 5 Cal 568 a question arose as to whether 11 secondary evidence could be given of the contents of a certificate granted by the Board of Trade. The loss of the document attracted cl. (c) of sec. 65 and the failure to produce it after notice attracted cl. (a) Cl. (f) of sec. 65 was also applicable. Wilson J. ruled that a certified copy need not be produced and any secondary evidence was admissible.
We agree with this decision. Wilson J. said:
"By S. 65 in cases under cls. (a) and (c) any secondary evidence is admissible; in cases under cls. (e) and (f) only a certified copy. The present case falls under cl. (a) or (c) and also under (f). In such a case which rule applies ? I think the words, 'In cases (a), (c) and (d) any secondary evidence is admissible,' are too clear and too strong to be controlled by anything that follows, and that, therefore, in this case any secondary evidence might be received."
4. The existence of the deed of waqf dated August 20, 1827 is proved by numerous admissions made by Gholam Bari and his predecessors-in-title. The existence of the deed was admitted in a petition filed by Bibi Zaibunnisa before ,the District Judge, Patna on January 13, 1928, in the return filed before the plaintiff by Gholam Bari on September 25, 1948, in the petition dated February 15, 1949 and a statement dated March 21, 1949 filed by him before the President of the Bihar Subai Sunni Majlis-e-Awaqaf. Other documents and admissions also clearly show that the disputed holdings are waqf properties.
The judgment in Nawab Singh v. Inderjit Kaur [supra], Marwari Kumhar and others v. Bhagwanpuri Guru Ganeshpuri and another [supra] and Smt. Aneeta Rajput v. Smt. Sarswati Gupta [supra] are of no assistance to the respondents.
12In the judgment in Smt. Aneeta Rajpoot (supra) relied upon by learned counsel for respondent, said case was also a case where there was no dispute as regard to existence of original being in possession of the plaintiff. This would be evident from opening line of paragraph 15; wherein Their Lordships were pleased to observe:
"15. However, this would never mean that if the plaintiff by taking undue advantage of having possession of original document of receipt with her, would be permitted to conceal the document in question and in order to prove her dishonesty and her act trying to deprive the defendant/petitioner from proving the contents of the document in question so as to prove her case........"
Having thus considered the impugned order when is tested on the basis of above analysis cannot be given stamp of approval. Consequently, the impugned order is set aside. Application preferred by respondent Nos. 3, 4 and 7 under Section 65 is rejected. As the suit is pending since 2007, the Trial Court is requested to dispose of the same expeditiously. However, not later than six months from the date of communication of this order.
Petition is allowed to the extent above. Parties are left to bear their own costs.
(SANJAY YADAV) JUDGE VIVEK