Madhya Pradesh High Court
Bhupesh Agrawal vs S.M. Choudhary on 24 February, 2021
Equivalent citations: AIRONLINE 2021 MP 596
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
W. P. No. 11848/ 2017
THE HIGH COURT OF MADHYA PRADESH
W. P. No. 11848/ 2017
(Bhupesh Agrawal & Another Vs. S.M. Chaudhary & Another)
JABALPUR; Dated: 24/02/2021
Shri Sanjay Agrawal, learned counsel for the
petitioners.
Shri Deepak Okhade, learned counsel for the
respondents connected through video-conferencing.
With the consent of learned counsel for the parties, the matter is heard finally.
2. By the instant petition, the petitioners are assailing the order dated 22.07.2017 (Annexure-P/13) whereby their application filed under Section 65 of the Indian Evidence Act, 1872 (hereinafter referred to as 'the Act, 1872'), has been rejected by the Court below mainly on two counts, firstly; that in their application, they have not disclosed the source of obtaining the document which is sought to be examined as a secondary evidence, and secondly; relying upon a judgment reported in AIR 2007 MP 157 (Haji Mohd. Islam & Another Vs. Asgar Ali & Another), it is held that name of the person who got the photocopy of said document done, has not been disclosed in the application.
2W. P. No. 11848/ 2017
3. Learned counsel for the petitioners submits that so far as the first ground is concerned, that is contrary to the record as the petitioners in paragraph-4 of the application have mentioned the source of obtaining the document, but the Court has ignored that fact and gave perverse finding and so far as the second ground is concerned, he submits that the provisions of Section 65 of the Act, 1872, do not provide any such requirement as has been observed by the Court and therefore, such observation is contrary to the provisions and rejection of the application on that count is also not sustainable.
4. On the other hand, learned counsel for the respondents submits that in the application itself, it is disclosed by the petitioners that on earlier occasion, they have filed an application of same nature, but that has been rejected by the Court, as is mentioned in paragraphs-4 and 5 of the application, therefore, rejection of the application filed by the petitioners/defendants, is proper. He further submits that the High Court while exercising the power provided under Article 227 of the Constitution of India, cannot reappreciate the facts but can interfere in the order only in a circustance when the 3 W. P. No. 11848/ 2017 Court below exceeds its jurisdiction. He submits that in view of the order passed by the Court below, it is apparent that the Court has not exceeded its jurisdiction, therefore, this petition is without any substance and deserves to be dismissed.
5. I have heard the arguments advanced by learned counsel for the parties.
6. In invocation of jurisdiction of this Court under Article 227 of the Constitution of India, the petitioners have filed this petition calling in question the penetrability of the order dated 22.07.2017 (Annexure- P/13) passed by the Civil Judge Class-II, Satna, in Civil Suit No.23130100959/2012, rejecting the petitioners' application preferred under Section 65 of the Act, 1872.
7. The facts of the case in nutshell are, that the plaintiffs/respondents have filed a suit for permanent injunction in respect of Shop Nos.5 and 6 situated in Kirti Bazar, Semariya Chowk, Satna. The claim of the plaintiffs was based upon the fact that Shop Nos.5 and 6 were allotted to them in auction and separate agreements were executed with them. The plaintiffs further submitted that Shop Nos.7 and 8 adjoining to Shop Nos.5 and 6 belong to 4 W. P. No. 11848/ 2017 the defendants and they are trying to get possession of the suit shops forcibly.
The defendants No.1 and 2 (petitioners herein) filed their separate written statement stating that Shop Nos.7 and 8 are adjoining to the Shop Nos.5 and 6 and Shop Nos.7 and 8 were allotted by the Municipal Corporation, Satna, in favour of Shri Ramavtar Choudhary and Shri Radheshyam Sharraf, respectively. Ramavtar Choudhary and Radheshyam Sharraf are the elder brother and brother-in-law of plaintiff No.1 (respondent No.1 herein), respectively. Shop Nos.5, 6, 7 and 8 are adjoining to each other and have been converted into one shop, in which, office of 'Santoshi Pipe Factory' was opened and suffering loss in the business, the said factory was closed. The defendants further submitted that the Memorandum of Understanding (for brevity 'MoU') dated 28.04.1995 was executed between plaintiff No.1 and his elder brother Ramavtar Choudhary, by which the right of plaintiff No.1 over the suit shop had come to an end.
In Shop Nos.7 and 8, Ramavtar Choudhary started business with defendant No.1 since year 2000 and started business with defendant No.2 in Shop No.5 and 6 since 5 W. P. No. 11848/ 2017 year 1998, thus, the defendant No.1 is in exclusive possession of Shop Nos.7 and 8 and defendant No.2 is in possession of Shop Nos.5 and 6. Copy of the MoU was filed along with the plaint. Therefore, the defendants have taken a stand that the plaintiffs have no right, title or interest over the suit shops and as such, claimed dismissal of the suit.
Ramavtar Choudhary, the elder brother of plaintiff No.1, had executed an affidavit dated 19.08.2011 wherein he had specifically stated that the MoU was executed between him and his brother Surendra Mohan Choudhary on 28.04.1995. In such MoU, Shop Nos.5 and 6 were received by him and possession of the said shops was handed-over to defendant No.2- Sanjeev Agrawal in the year 1998. The affidavit makes it clear that the MoU dated 28.04.1995 was executed and duly acted upon.
8. An application under Order 11 Rule 12 & 14 r/w Section 151 of the Code of Civil Procedure, was filed for a direction to the plaintiffs to produce the original MoU dated 28.04.1995 moved before the Court below so that the same may be proved in evidence. The application was replied to and the same was dismissed by the Court 6 W. P. No. 11848/ 2017 below as the plaintiffs denied execution of the said MoU.
9. After dismissal of the said application, the defendants filed an application under Section 65 of the Act, 1872, for proving the MoU dated 28.04.1995 by way of secondary evidence. The plaintiffs filed reply to the said application, but the application was dismissed by the trial Court vide order dated 08.02.2017 (Annexure-P/10) on the ground that no affidavit in support of the application was filed and copy of the MoU was also not filed along with the same.
10. Since the application had been rejected on technical ground, therefore, another application was moved under Section 65 of the Act, 1872 r/w Section 151 of the C.P.C. supported by an affidavit and also the copy of MoU. The said application was also rejected by the trial Court vide order dated 22.07.2017 on the ground that the defendants have not disclosed the source of obtaining the copy of MoU dated 28.04.1995 and also on the ground that they have not disclosed the name of the person who got the photocopy of the said document, prepared. The said order dated 22.07.2017 (Annexure-P/13) is impugned in this petition.
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11. Learned counsel for the petitioners has submitted that the petitioners in paragraph-3 of their application i.e. Annexure-P/11, have disclosed the source of obtaining the copy of MoU. Paragraph-3 of the application is reproduced hereinbelow:-
"3- ;g fd izfroknhx.kksa us vius tckc ds leFkZu esa oknh ua0& 1 ds cMs HkkbZ jkevkSrkj pkS/kjh dk bl vk'k; dk 'kiFk i= is'k fd;k fd mlds rFkk oknh ua0&1 ds chp ikfjokfjd O;oLFkk dk ys[k fd;k x;k Fkk ftlds vuqlkj mls pkjks nqdkuksa ds lacU/k esa dk;Zokgh djus dk gd fn;k x;k Fkk jkevkSrkj pkS/kjh us izfroknhx.kksa dks ;g cryk;k Fkk fd ikfjokfjd O;oLFkk dk vly nLrkost oknh ua0&1 ds ikl gS mldh QksVks dkih mlus izfroknhx.kksa dks fn;k ftls izfroknhx.kksa us izdj.k esa is'k fd;k gSA"
12. Learned counsel for the petitioners has submitted that in view of the disclosure made by the petitioners in their application, the rejection of their application on the ground of non-disclosure of source, is absolutely perverse and illegal. He has further submitted that the aforesaid paragraph clearly indicates the source of obtaining the copy of MoU and also as to how it got prepared by the brother of the plaintiffs. He has further submitted that Section 65 of the Act, 1872, does not contain any such condition under which existence of secondary evidence can be determined. He has further submitted that the order impugned is not sustainable in 8 W. P. No. 11848/ 2017 the eyes of law as the same is contrary to the requirement of Sections 63 and 65 of the Act, 1872.
13. Per contra, learned counsel for the respondents has submitted that once the application moved under Section 65 of the Act, 1872 is rejected, then there was no occasion for the Court to entertain the second application for the same cause of action under the same provision and as such he supported the order of the trial Court and submitted that the petition is without any substance and deserves to be dismissed.
14. Considering the rival contentions of learned counsel for the parties, the seminal question arises for consideration is that whether the learned trial Court was justified in rejecting the application for grant of permission to lead secondary evidence filed by the defendants/petitioners or not.
15. In this context, I may refer with profit to Sections 63 and 65 of the Act, 1872, which read as under:-
"63. Secondary evidence.- 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;9 W. P. No. 11848/ 2017
(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 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."
16. On a perusal of the stand taken by the defendants/petitioners and perusal of their application, it is clear that they have disclosed the very source of obtaining the document i.e. the MoU, but that part of the application has not been looked into by the trial Court and incorrectly, the Court has observed that there was no disclosure of source in the application. 10 W. P. No. 11848/ 2017
17. The Court has also observed that the application submitted by the petitioners also does not disclose the name of the person who got the photocopy of the original document done, whereas, from perusal of the facts mentioned in paragraph-3 of the application, as quoted hereinabove, it is clear that it is the brother of plaintiff No.1, who got the photocopy of the MoU and gave the same to the defendants/petitioners. Even otherwise, the disclosure of the person who got prepared the photocopy of the document, was not the requirement to treat the document as secondary evidence and also to prove the existence of the document, for which secondary evidence is to be given.
18. In the case of Haji Mohd. Islam (supra), the High Court has relied upon a decision of the Division Bench reported in AIR 2001 AP 394 parties being Badrunnisa Begum Vs. Mohamooda Begum, wherein the Division Bench considering the scope of Section 65 of the Indian Evidence Act, 1872, has observed 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 11 W. P. No. 11848/ 2017 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."
19. After taking note of the view taken by the High Court in regard to Sections 63 and 65 of the Act, 1872, and also perusal of the respective provisions, I am of the opinion that the order impugned dated 22.07.2017 (Annexure-P/13) passed by the Court below rejecting the application filed by the petitioners under Section 65 of the Act, 1872, is not sustainable, therefore, deserves to be set aside.
20. Further, the submissions made by learned counsel for the respondents is not acceptable for the reason that it is not a case, in which there was any suppression made by the party while moving the subsequent application under Section 65 of the Act, 1872, because in the said application, they have very 12 W. P. No. 11848/ 2017 categorically disclosed the fact regarding rejection of their earlier application, but that aspect has not been made foundation by the Court below for rejecting the application of the defendants/petitioners filed under Section 65 of the Act, 1872.
21. Though that fact was considered by the Court below but rejected the application not on the said ground, therefore, this Court is reluctant to enter into the said field and not inclined to give any finding thereof.
22. In view of the above, the order dated 22.07.2017 (Annexure-P/13) passed by the Court below is hereby set aside. The application submitted by the defendants/petitioners under Section 65 of the Act, 1872, r/w Section 151 of the C.P.C. is, accordingly, allowed. The petitioners are permitted to lead secondary evidence in respect of the MoU dated 28.04.1995.
23. Accordingly, this petition stands allowed with the aforesaid observations.
No order as to costs.
(SANJAY DWIVEDI) JUDGE Prachi PRACHI PANDEY 2021.02.27 17:05:56 +05'30'