Madhya Pradesh High Court
Smt. Leelabai vs Ujjain Nagar Palik Nigam on 7 September, 2022
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 7th OF SEPTEMBER, 2022
MISC. PETITION No. 2145 of 2021
BETWEEN:-
1. SMT. LEELABAI W/O LATE SHRI DAULATSINGH
MEENA, AGED ABOUT 80 YEARS, OCCUPATION:
AGRICULTURE 111, ANKPAT MARG KAJIPURA
(MADHYA PRADESH)
2. DASHRATH SINGH S/O LATE DAULATSINGH JI
MEENA, AGED ABOUT 58 YEARS, OCCUPATION:
AGRICULTURE 111, ANKPAT MARG KAJIPURA
(MADHYA PRADESH)
3. ANANT NARAYAN S/O LATE DAULATSINGH JI
MEENA, AGED ABOUT 52 YEARS, OCCUPATION:
AGRICULTURE 111, ANKPAT MARG KAJIPURA
(MADHYA PRADESH)
4. OMPRAKASH S/O LATE DAULATSINGH JI
MEENA, AGED ABOUT 52 YEARS, OCCUPATION:
AGRICULTURE 111, ANKPAT MARG KAJIPURA
(MADHYA PRADESH)
5. SMT. KARMA BAI W/O RAMESHAR JI MEENA,
AGED ABOUT 48 YEARS, GRAM RUDAHEDA
TEHSIL GHATIYA DIST UJJAIN (MADHYA
PRADESH)
6. SMT. BHURIBAI W/O PRAHLAD JI MEENA,
AGED ABOUT 42 YEARS, OCCUPATION:
AGRICULTURE 111, ANKPAT MARG KAJIPURA
(MADHYA PRADESH)
7. MULCHAND S/O LATE MOTISINGH, AGED
ABOUT 52 YEARS, OCCUPATION: AGRICULTURE
11/1, ANKPAT MARG, UJJAIN (MADHYA
PRADESH)
Signature Not VerifiedDigitally signed by
8. HIMMAT SINGH S/O LATE MOTISINGH, AGED
SAN SOUMYA RANJAN
DALAI
Date: 2022.09.07
ABOUT 33 YEARS, OCCUPATION: AGRICULTURE
17:07:10 IST
11/1, ANKPAT MARG, UJJAIN (MADHYA
PRADESH)
2
9. RADHABAI D/O LATE MOTISINGH, AGED
ABOUT 51 YEARS, OCCUPATION: AGRICULTURE
11/1, ANKPAT MARG, UJJAIN (MADHYA
PRADESH)
10. REKHA D/O LATE MOTISINGH, AGED ABOUT 56
YE A R S , OCCUPATION: AGRICULTURE 11/1,
ANKPAT MARG, UJJAIN (MADHYA PRADESH)
11. KRISHNA URF NANI D/O LATE MOTISINGH,
AGED ABOUT 49 YEARS, OCCUPATION:
AGRICULTURE 11/1, ANKPAT MARG, UJJAIN
(MADHYA PRADESH)
12. SHASHI KUMAR MEENA S/O LATE HAJARILAL
JI MEENA, AGED ABOUT 55 YEARS,
OCCUPATION: AGRICULTURE GRAM
HAKKANIPURA TEHSIL AND DIST UJJAIN
(MADHYA PRADESH)
13. DILIP MEENA S/O LATE HAJARILAL JI MEENA,
AGED ABOUT 52 YEARS, OCCUPATION:
AGRICULTURE GRAM HAKKANIPURA TEHSIL
AND DIST UJJAIN (MADHYA PRADESH)
14. DEEPAK MEENA S/O LATE HAJARILAL JI
MEENA, AGED ABOUT 35 YEARS, OCCUPATION:
AGRICULTURE GRAM HAKKANIPURA TEHSIL
AND DIST UJJAIN (MADHYA PRADESH)
15. SMT. SUNITA W/O RAJARAM, AGED ABOUT 45
Y E A R S , GRAM BARKHEDI JAGIR POST
UJJANIYA RUDAHEDA DIST UJJAIN (MADHYA
PRADESH)
16. SMT. SUVIDA MEENA W/O PRAHLAD MEENA,
AGED ABOUT 40 YEARS, GRAM RUDAHEDA
TEHSIL GHATIYA DIST UJJAIN (MADHYA
PRADESH)
17. SMT. ANITA W/O DILIP MEENA, AGED ABOUT 42
YEARS, GRAM SURASA KALIYADEHH UJJAIN
(MADHYA PRADESH)
18. SMT. MAMTA W/O KANHAIYALAL, AGED
ABOUT 53 YEARS, 2, ANKPAT MARG, GALI NO. 7
UJJAIN (MADHYA PRADESH)
Signature Not VerifiedDigitally signed by
SAN SOUMYA RANJAN
DALAI
Date: 2022.09.07
17:07:10 IST 19. SMT. GEETA BAI W/O LATE HARISINGH JI
MEENA, AGED ABOUT 65 YEARS, OCCUPATION:
AGRICULTURE 111, ANKPAT MARG KAJIPURA
3
(MADHYA PRADESH)
20. JEEVAN SINGH S/O LATE HARISINGH JI
MEENA, AGED ABOUT 45 YEARS, OCCUPATION:
AGRICULTURE 111, ANKPAT MARG KAJIPURA
(MADHYA PRADESH)
21. PADAMSINGH S/O LATE HARISINGH MEENA,
AGED ABOUT 37 YEARS, 111, ANKPAT MARG
KAJIPURA (MADHYA PRADESH)
22. SMT. JYOTI W/O BHARAT JONWAL, AGED
ABOUT 40 YEARS, GRAM AKEPUR DIST DEWAS
(MADHYA PRADESH)
.....PETITIONERS
(SHRI VIJAY KUMAR ASUDANI, LEARNED COUNSEL FOR THE
PETITIONERS)
AND
1. UJJAIN NAGAR PALIK NIGAM THR. NAGAR
PRASASHAK CHATRICHOWK (MADHYA
PRADESH)
2. COMMISSIONER UJJAIN NAGAR PALIK NIGAM
UJJAIN UJJAIN (MADHYA PRADESH)
3. STATE OF M.P. THR COLLECTOR UJJAIN
(MADHYA PRADESH)
.....RESPONDENTS
(SHRI MANOJ MUNSHI, LEARNED COUNSEL FOR THE
RESPONDENTS NO. 1 & 2)
T h is petition coming on for orders this day, t h e cou rt passed the
following:
ORDER
This is a petition filed under Article 227 of the Constitution of India being aggrieved by the order dated 15.03.2021 passed by the Trial Court whereby the application filed by the petitioner under Section 65 of the Evidence Act has Signature Not VerifiedDigitally signed by SAN SOUMYA RANJAN been rejected and also the order dated 24.06.2021 passed on the application for DALAI Date: 2022.09.07 review of the order dated 15.03.2021 dismissing the review petition. 17:07:10 IST 4
2) A suit for declaration of title and the injunction has been filed by the petitioner plaintiff on 27.06.1990. The said suit was dismissed by the trial Court. Against the said order, an appeal was preferred which was also dismissed by the appellate Court. Thereafter the second appeal was filed before this Court which was decided by this Court by order dated 08.03.2018 and the matter was remanded back to the trial Court for fresh adjudication in accordance with the law after giving opportunity to the parties to lead the evidence. After remand, the defendants filed an application under Order 7 Rule 11 CPC for dismissal of the suit on the ground that the plaintiff has not issued any notice under Section 401 of the M.P. Municipal Corporation Act, 1956 and, therefore, the suit is not maintainable. The trial Court passed an order that the said objection raised by the respondent-defendant shall be considered at the time of final hearing. Thereafter, the petitioner filed an application under Section 65 of the Evidence Act for taking secondary evidence of the documents filed along with the list of documents. It is submitted that the petitioner has filed copy of the application under Section 94 r/w Section 151 CPC filed by the plaintiff and in support of the said application, the carbon copy of affidavit of Hari Singh, Daulat Singh were also filed. The petitioner also filed copy of the written objection dated 22.06.1990 filed by the defendant which was signed by the then Senior Advocate of the Defendant Shri Chawla Mehta. Along with the said application, copy of the order dated 26.06.1990 passed by 2nd Civil Judge, Class-II, Ujjain was also filed. The said copy was a true copy. These documents were sought to be adduced as secondary evidence. The defendant filed reply to the said Signature Not VerifiedDigitally signed by SAN application and submitted that the application is lacking the ingredients of SOUMYA RANJAN DALAI Date: 2022.09.07 17:07:10 IST Section 63 & 65 of the Evidence Act. The petitioner has failed to disclose the source of the aforesaid documents and the fact that from where and how these 5 documents have been procured. It is further stated that the documents were in possession of the petitioner for last 31 years, but they were not produced by him in the pending suit.
3) Counsel for the petitioner submitted that though the application filed under Section 65 of the Evidence Act may be lacking certain ingredients of Section 63 & 65 of the Evidence Act, but the reasonable source and ingredients were explained in the affidavit of Jeevan Singh filed along with the application. It is submitted that certain documents were carbon copy of the original and all the documents were not photocopy.
4) I have heard learned counsel for the parties.
5) Before adverting to the merits of the case, it is apposite to survey the law relating to the acceptance of secondary evidence under Section 65 of the Evidence Act. First the relevant provisions of Section 63 & 65 of the Evidence Act are quoted as under:-
63. Secondary evidence.-Â"Secondary evidence means and includes-
(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 execute them;
(5) oral accounts of the contents of a document given by some person who has himself seen it.
65. Cases in which secondary evidence relating to documents may be Signature Not VerifiedDigitally signed by given.-Â"Secondary evidence may be given of the existence, condition or SAN contents of a document in the following cases- SOUMYA RANJAN DALAI Date: 2022.09.07 17:07:10 IST
(a) when the original is shown or appears to be in the possession or power-
6of 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 91[India], to be given in evidence;
(g) when the originals consist 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 Signature Not VerifiedDigitally signed by SAN SOUMYA RANJAN such documents.
DALAI Date: 2022.09.07 17:07:10 IST
6) The first issue is that whether the photocopy can be accepted as 7 secondary evidence. In the case of Rashid Khan s/o Yasin Khan Musalman and Anr. reported in 2011(3) MPLJ 575, this Court has specifically considered in detail whether the photocopy can be accepted as secondary evidence. In another case, Smt. Aneeta Rajpoot vs. Smt. Saraswati Gupta in W.P. No. 11990/2012 decided on 16.08.2012, this Court considered the scope of Section 65 of the Indian Evidence Act in detail and held that photocopy is not admissible as secondary evidence. In the case of Ratanlal vs. Kishanlal reported in 2012 (III) MPJR 24, this Court held that the photocopy is neither a primary nor secondary evidence. The party is required to prove when and where the photocopy was taken and it is the same and exact copy of the original.
7) In Ashok Dulichand v. Madahavlal Dube [(1975) 4 SCC 664] wherein it has been held that: (SCC p. 666, para 7) “7. … According to clause (a) of Section 65 of the Evidence Act, secondary evidence may be given of the existence, condition 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, 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.â€Â
8) In J. Yashoda v. K. Shobha Rani [(2007) 5 SCC 730 : (2007) 3 SCC (Cri) 9], after analysing the language employed in Sections 63 and 65(a), Apex Court held as follows: (SCC p. 733, para 9) "Section 65, however permits secondary evidence to be Signature Not VerifiedDigitally signed by given of the existence, condition or contents of documents under the circumstances mentioned. The SAN SOUMYA RANJAN DALAI Date: 2022.09.07 conditions laid down in the said section must be fulfilled 17:07:10 IST before secondary evidence can be admitted. Secondary 8 evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or the other of the cases provided for in the section."
9) In M. Chandra v. M. Thangamuthu [(2010) 9 SCC 712 : (2010) 3 SCC (Civ) 907], it has been held as follows: (SCC pp. 735-36, para 47) "It is true that a party who wishes to rely upon the contents of a document must adduce primary evidence of the contents, and only in the exceptional cases will secondary evidence be admissible. However, if secondary evidence is admissible, it may be adduced in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in another form. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It should be emphasised that the exceptions to the rule requiring primary evidence are designed to provide relief in a case where a party is genuinely unable to produce the original through no fault of that party."
10) The Apex Court in Kaliya v. State of M.P. (2013) 10 SCC 758 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.
11) Thus, one has to establish that the photocopy is of a document Signature Not VerifiedDigitally signed by SAN SOUMYA RANJAN which actually existed. For this purpose, there must be sufficient proof of the DALAI Date: 2022.09.07 17:07:10 IST search for the original to render secondary evidence admissible. It must be 9 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.
12) The Supreme Court in the matter of Shalini Shyam Shetty and another vs. Rajendra Shankar Patil reported in (2010) 8 SCC 329 has held that High Court in exercise of its power of superintendence cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. The High Court can exercise this power when there has been a patent perversity in the orders of tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
13) In the light of the aforesaid enunciation of law, if the facts of the present case is examined in the application filed under Section 65 of the Evidence Act, the petitioner has failed to prove the existence of the original document and the aforesaid documents were not filed along with the application. They were part of the list of the documents which were filed with reply to the application under Order 7 Rule 11 CPC. The petitioner has not pleaded that whether the original have lost or destroyed. The petitioner has been in possession of the document for last 30 years, but there is no explanation for Signature Not VerifiedDigitally signed by not producing the aforesaid documents for such a long period. In the light of SAN SOUMYA RANJAN DALAI Date: 2022.09.07 17:07:10 IST the aforesaid judgments and keeping in view of Section 63 & 65 of the Evidence Act, the trial Court was justified in dismissing the application. This 10 Court does not find any reason to interfere with the order passed by the trial Court in exercise of writ jurisdiction under Article 227 of the Constitution of India.
In view of the aforesaid, the petition is dismissed.
(VIJAY KUMAR SHUKLA)
JUDGE
soumya
Signature Not Verified
VerifiedDigitally
Digitally signed by
SAN SOUMYA RANJAN
DALAI
Date: 2022.09.07
17:07:10 IST