Chattisgarh High Court

Smt. Kamolina Raj vs Shri Amit Jeevan on 1 November, 2022

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                                                                              NAFR
            HIGH COURT OF CHHATTISGARH, BILASPUR
                           W.P.(227) No. 560 of 2022

                        Order Reserved on 13.10.2022

                        Order Delivered on 01.11.2022

  1. Smt. Kamolina Raj Wd/o Mr. R. J. Dharmraj Aged About 71 Years R/o
     Lodhi Para Chowk, Raipur, Tehsil And District Raipur Chhattisgarh
  2. Sanjay Dharam Raj S/o Mr. R. J. Dharmraj Aged About 52 Years R/o
     Lodhi Para Chowk, Raipur, Tehsil And District Raipur Chhattisgarh
  3. Smt. Doji Sanjana Dharmraj D/o Mr. R. J. Dharmraj Aged About 47
     Years R/o Lodhi Para Chowk, Raipur, Tehsil And District Raipur
     Chhattisgarh
                                                                   ---- Petitioners
                                      Versus

  1. Shri Amit Jeevan S/o Late Shri Lakhiram Jeevan Aged About 62 Years
     R/o Rajeev Nagar, Raipur, Tehsil And District Raipur Chhattisgarh
  2. State Of Chhattisgarh Through Collector, District Raipur Chhattisgarh.
                                                               ---- Respondents

For Petitioners : Shri Devershi Thakur, Advocate. For Respondent No.1 : Shri Lukesh Kumar Mishra & Shri Vinay Nagdev, Advocates.

For Respondent No.2/ State : Shri Sudhir Sahu, P.L.

Hon'ble Shri Justice Rakesh Mohan Pandey

CAV Order

Heard.

1. This petition is filed against the order dated 12.8.2022 passed by the

learned XIth Additional District Judge, Raipur, District Raipur,

Chhattisgarh in Civil Suit No. 32A of 2021, whereby an application

moved by the plaintiff under Section 65 of the Indian Evidence Act has

been allowed.

2. The case in nutshell is that respondent No.1/ plaintiff filed a civil suit for

specific performance of contract inter alia on the ground that on

11.12.2018, plaintiff and defendant Nos.1 to 3 entered into an

agreement to sell for the property situated at main road Lodhi Para

Chowk, Tehsil & District Raipur, bearing survey Nos. 404/5, 7/1, 406/2,

407/2, 408/2 & 409 admeasuring 3939 sq. ft. for a consideration of

Rs.75,00,000/- and an amount of Rs.2,00,000/- was given as earnest

money.

3. According to condition of the agreement to sell, the sale-deed was to be

executed within three months from updation of the revenue records. It

was further pleaded that the plaintiff approached the defendants many

times but the defendants failed to execute the sale-deed, therefore, a

legal notice was given on 21.8.2020 and 1.3.2021 which was replied to

on 6.3.2021 and thereafter, a civil suit was filed alongwith an application

under Order XXXIX Rule 1 & 2 of the CPC.

4. The petitioners/ defendants No.1 to 3 filed their written statement and

stated that they never entered into any agreement to sell pertaining to

suit house and their signatures were taken by playing fraud and they

never appeared before the notary for any sort of attestation. It is further

stated in the written statement that the earnest money was refunded

back to broker Amit Agrawal and the suit property belongs to Hindu

undivided family.

5. On 9.5.2022, the plaintiff moved an application under Section 65 of the

Indian Evidence Act stating that the agreement to sell is lost somewhere

and in absence of such document, he is unable to adduce it as

evidence, therefore, a photocopy of the same may be permitted to be

led as secondary evidence, as defendants No.1 to 3 have not denied

the existence of such document.

6. The application moved by the plaintiff was replied to by defendant Nos.1

to 3 and specific averment has been made that no affidavit has been

filed in support of the application and it is further stated that the copy of

agreement to sell is not legible, the xerox copy of the agreement cannot

be treated as the xerox copy of the original and the same is not a copy

of the original. They further stated that the document is forged one and

the application moved by the plaintiff is liable to be rejected.

7. Learned trial Court vide order dated 12.8.2022 held that in paragraph 3

of the written statement defendants No.1 to 3 have admitted the fact that

on 10.12.2018 brokers, namely, Shahid Hussain and Amit Agrawal came

to their house and one typed agreement to sell was signed by them.

Learned trial Court allowed the application moved by the plaintiff

according to the provisions of Section 65(c) of the Indian Evidence Act.

8. Learned counsel for the petitioners/ defendants No.1 to 3 submits that

there is no averment in the plaint regarding execution to the effect that

the original agreement to sell is within the possession of the parties to

the suit and the same has been misplaced or lost. He further submits

that existence of the original has to be established in order to lead

secondary evidence and xerox copy of the original is not admissible.

His next contention is that the existence of the agreement is in doubt,

therefore, the learned Court below has committed illegality by allowing

such application.

9. Learned counsel for the petitioners has placed reliance upon the

judgments of Supreme Court in the cases of Banarsi Dass vs. Om

Prakash and Ors., reported in AIR 2005 P & H 200, Yeshwant

Rambhau Chondhe vs. Vilas Bapurao Shinde, reported in AIR 2007

(NOC) 2623, K. Krishna Appala Naidu vs. B. Sohanlal, reported in

AIR 2004 AP 439, Rakesh Mohindra vs. Anita Beri and Others,

reported in (2016) 16 SCC 483, Rashid Khan S/o. Yasin Khan

Musalman and Another vs. State of M.P. & Others, reported in

(2011) 3 MPLJ 575, Smt. Aneeta Rajpoot vs. Smt. Saraswati Gupta

passed in W.P. No. 11990 of 2012.

10. On the other hand, learned counsel for the plaintiff submits that in the

written statement, defendants No. 1 to 3 have admitted their signatures

over the agreement to sell and in paragraph 10 also they have not

denied the existence of execution of the agreement to sell. Paragraphs

3 and 10 of the written statement are reproduced herein:

'3-ckn i= dh dafMdk 03 dk tokc%& dafMdk dzekad 03 ds dFku la'kks/ku ds lkFk va'kr% Lohdkj gSA bl dFku ls badkj gS] fd izfroknh dzekad 01 ls 03 ds }kjk pqdrk 75]00][email protected]&:- esa vfer thou ls lkSnk djrs gq, crkSj c;kuk nks yk[k :i;s fnukad 10-12-2018 dks xokgksa ds le{k izkIr fd;k gSA okLrfod lR; ;g gS] fd izfroknh dekad 01 ls 03 ds }kjk vius LokfeRo dh Hkwfe dks fodz; djuk Lohdkj djrs gq, vfer uked O;fDr tks fd tehu nyky 'kkfgn gqlSu ds lKFk fnukad 10-12- 2018 dks izfroknh dzekad 01 ds ?kj vk;k vkSj vius lkFk bdjkjukek VkbZi djkdj lkFk esa yk;k] ftl ij izfroknh dzekad 01] 02] 03] ds gLrk{kj fy;s x;s gS] fnukad 10-12- 2018 dks latuk keZjkt ds }kjk crkSj xokg vius gLrk{kj fd;s Fks] rRle; esa bdjkjukek fdlh Hkh uksVjh ds le{k fu"ikfnr ugha gqvk Fkk vkSj u gh [email protected] vfer thou dk gLrk{kj Fkk] Hkwfe nyky 'kkfgn gqlSu o lkFk esa vk;s gq, O;fDr tks vius vkidks Hkwfe dz; djuk crkrs gq, izfroknh dekad 01 Jherh deksfyuk jkt dks nks yk[k :i;s uxn iznku fd;s Fks vkSj ewy bdjkjukek ij gLrk{kj ysdj pys x;s Fks] ftldh dkih ekaxus ij ckn esa nsuk dgk] ijarq Hkwfe nyky vkSj lkFk esa vk;s O;fDr vfer us bdjkjukek ds nLrkost iznku ugha fd;s] mDr laca/k esa vU; dksbZ vfHkLohd`fr izfroknhx.k ds }kjk ugha dh x;h gS] oknh vius dFkuksa dks izekf.kr djsaA 10- okn i= dh dafMdk 10 dk tokc%& dafMdk dekad 10 ds dFku ls badkj gSA bl dFku ls badkj gS] fd okn ds vfHkopuksa rFkk layXu nLrkostksa ls ;g LiLV gS] fd oknh

vius i{k dh lafonk ds ikyu esa lnSo ls rRij ,oa rS;kj jgk Fkk djkjukek fu"iknu ds i'pkt ld oknh ds ikl vkt fnukad rd okn laifRr dks dz; fd;s tkus ds fy, cdk;k izfrQy jde ekStqn gSA bl dFku ls Hkh badkj gS] fd blds Bhd foifjr izfroknh tkucw>dj vius i{k dh lafonk dk ikyu ugha dj jgk gSA bl dFku ls Hkh badkj gS] fd izdj.k ds rF;ksa ,oa ifjfLFkfr;ksa dks ns[krs gq, izfroknhx.k ds fo:) lafonk ds fofun`"V vuqikyu dh fMdzh iznku djrs gq, izfroknhx.k dh okn laifRr oknh ds i{k esa iathd`r cSukek ds tfj;s fu"ikfnr fd;s tkus gqrq vknsf'kr fd;k tkuk U;k;fgr esa vko';d gSA okLrfod rF; gS] fd izfroknhx.k lnSo lafonk ds ikyu gsrq rS;kj ,oa rRij jg gSA blds foifjr oknh vius drZO; ds ikyu djus esa vlQy jgk gS] blfy, oknh ds i{k esa lafonk ds ikyu dh fMdzh iznku ugha fd;k tk ldrk gS] D;ksafd dfFkr vuqca/k vfuf'prrk ds dkj.k fof/k ds vuqlkj izorZuh; ugha gksus ls izLrqr okn fujLr fd;s tkus ;ksX; gSA"

11. Learned counsel for the plaintiff/ respondent No.1 further submits that

the learned trial Court has rightly allowed the application moved under

Section 65 of the Evidence Act by the plaintiff and it does not require

interference by this Hon'ble Court.

12. I have heard counsel for the parties and perused the record.

13. For the purpose of discussion Sections 63 and 65 of the Evidence Act

are quoted herein :-

"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 ensure 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 documents given by some person who has himself seen it.

Illustrations

(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.

(c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence; but he copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original.

(d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine copy of the original, is secondary evidence of the original."

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 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 consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved it 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, 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 such documents."

14. The sum and substance of the judgment cited by the learned counsel for

the petitioners is that a xerox copy of the notarized document cannot be

admitted as secondary evidence and when the defendants seriously

dispute the existence of such agreement, the application cannot be

allowed. The xerox copy of the notarized document is not a secondary

evidence according to Section 63 of the Indian Evidence Act and further,

the plaintiff has not pleaded in the plaint that the original document is

lost or destroyed.

15. Learned counsel for the respondent has also placed reliance upon the

judgment of Supreme Court in the case of Rakesh Mohindra vs. Anita

Beri and Others (supra) with reference to paragraphs 22 & 24 and the

same is reproduced:

"22. After considering the entire facts of the case and the evidence adduced by the appellant for the purpose of admission of the secondary evidence, we are of the view that all efforts have been taken for the purpose of leading secondary evidence. The trial court has noticed that the photocopy of the Exhibit DW-2/B came from the custody of DEO, Ambala and the witness, who brought the record, has been examined as witness. In that view of the matter, there is compliance of the provisions of Section 65 of the Evidence Act. Merely because the signatures in some of the documents were not legible and visible that cannot be a ground to reject the secondary evidence. In our view, the trial court correctly appreciated the efforts taken by the appellant for the purpose of leading secondary evidence.

24. However, we make it clear that mere admission of secondary evidence does not amount to its proof. The genuineness, correctness and existence of the document shall have to be established during the trial and the trial court shall record the reasons before relying on those secondary evidence."

16. After going through the judgment passed by the Hon'ble Supreme Court

and from perusal of the records of this case, it is quite vivid that

defendants No.1 to 3 have admitted the existence of agreement to sell

and in paragraph 3 of their written statement they have stated that they

put their signatures over the agreement to sell. In paragraph 10, they

have again admitted existence of the said agreement. It is settled law

that mere admission of secondary evidence does not amount to its

proof. The genuineness, correctness and existence of the document

shall have to be established during the trial and the trial Court has to

record the reasons before relying on the secondary evidence.

17. The plaintiff has produced notarized copy of the agreement to sell and

merely because it is xerox copy of the notarized or it is not visible