Jharkhand High Court

Gharonda Properties (India) Private ... vs Anil Kumar Agrawal on 7 April, 2025

Author: Sanjay Kumar Dwivedi

Bench: Sanjay Kumar Dwivedi

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        IN THE HIGH COURT OF JHARKHAND, RANCHI
                 C.M.P. No. 973 of 2024
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1. Gharonda Properties (India) Private Limited having its registered office at Joraphatak Road, Dhansar, PO and PS - Dhansar, District - Dhanbad through its authorized signatory namely Harshit Jindal, aged 35 years, son of Surendra Jindal, resident of Arjun Road, Sindri, Goushala, near BIT Sindri, Het Kandra, Motinagar, PO and PS - Sindri, District - Dhanbad

2. Vivek Vikram Poddar, aged 33 years, son of Deepak Kumar Poddar, resident of 84 Kabristan Road, Opposite Popular Nursing Home, Joraphatak Road, Dhansar, PO and PS - Dhansar, District - Dhanbad

3. Harshit Jindal, aged 35 years, son of Surendra Jindal, resident of Arjun Road, Sindri Goushala, near BIT Sindri, Het Kandra, Motinagar, PO and PS - Sindri, District - Dhanbad

4. Inderpal Singh Sandhu, aged 59 years, son of Late Swaroop Singh Sandhu, resident of 12/3A, Short Street PO and PS - Park Circus, Kolkata

5. Deepak Kumar Poddar, son of Late Sanwarmal Poddar, aged about 58 years, resident of 84 Kabristan Road, Opposite Popular Nursing Home, Joraphatak Road, Dhansar, PO and PS - Dhansar, District -

  Dhanbad                                  .... Petitioners/Defendants
                         --      Versus     --

1. Anil Kumar Agrawal, son of Late Prabhu Dayal Agrawal, resident of Khirwal Bhawan, BM Agrawalla Colony, Bera, Dhansar, PO and PS - Dhansar, District - Dhanbad

2. Anup Kumar Agrawal, son of Late Prabhu Dayal Agrawal, resident of 64, Behind Dhansar Post Office, B.M. Agrawalla Colony, Bera, Dhansar, PO and PS - Dhansar, District - Dhanbad

3. Urmila Devi Agrawal, widow of Pawan Kumar Agrawal, resident of 64, Behind Dhansar Post Office, B.M. Agrawalla Colony, Bera, Dhansar, PO and PS - Dhansar, District - Dhanbad

4. Devesh Agarwal, son of Late Arun Kumar Agarwal, resident of A2/134, SNN Raj Etternia Apartment, Silver County Road,

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Parappana Agrahara, near Nandani Junction, Kudlu, PO and PS - Bommanhalli, Bengluru, Karnataka

5. Sabita Agarwal widow of Arun Kumar Agarwal, resident of A2/134, SNN Raj Etternia Apartment, Silver County Road, Parappana Agrahara, near Nandani Junction, Kudlu, PO and PS - Bommanhalli, Bengluru, Karnataka .... Opposite Parties

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioners :- Mr. Jitendra Kumar Pasari, Advocate :- Mr. Avinash Kumar Pasari, Advocate For the O.Ps :- Mr. Indrajit Sinha, Advocate :- Mr. Ashish Kr. Thakur, Advocate :- Ms. Prerna Jhunjhunwala, Advocate :- Ms. Kabisha Goenka, Advocate

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09/07.04.2025 Heard Mr. Jitendra Kumar Pasari, learned counsel appearing

for the petitioners and Mr. Indrajit Sinha along with Mr. Ashish Kr.

Thakur and Ms. Prerna Jhunjhunwala, learned counsel appearing for

the opposite parties.

2. This petition has been filed under Article 227 of the

Constitution of India for setting aside of the order dated 31.07.2024

passed by learned Civil Judge (Senior Division) - XI, Dhanbad in

Original Suit No.346 of 2021 whereby the learned Court has been

pleased to allow the petition filed under Sections 32 and 39 of

Indian Evidence Act filed by the plaintiffs/respondents and two

compact disks (C.D.) have been directed to be exhibited filed on

behalf of the plaintiffs/respondents.

3. Mr. Pasari, learned counsel appearing for the petitioners

submits that the said compact disc (C.D.) has been allowed by the

learned Court without following the procedure laid down under

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Section 65(B) of the India Evidence Act. He submits that in absence

of any pleading and further without any amendment the said

petition has been allowed which is not in accordance with law. He

further submits that the certificate of the said disc has been signed

by the plaintiff himself and a competent person has not signed the

said certificate, as such the certificate itself is a created document.

By way of referring to the said certificate, he submits that in the

certificate, the mobile number and a laptop have already been

disclosed which were the original materials and the original device

has not been produced and the said thing has been produced in the

form of C.D. before the learned Court. He submits that once the

mobile in original is available the same was required to be produced

before the learned Court. According to him, the said device has also

been produced before the learned Court belatedly and a case has

been made out to bring the same on the record. He submits that

beyond the pleadings, the same has been allowed which is against

the mandate of law. To buttress this argument, he relied in the case

of Bondar Singh and Others versus Nihal Singh and Others

reported in (2003) 4 SCC 161, wherein at paragraph No.7 it has

been held as under :-

7. As regards the plea of sub tenancy (shikmi) argued on behalf of the defendants by their learned counsel, first we may note that this plea was never taken in the written statement the way it has been put forth now. The written statement is totally vague and lacking in material particulars on this aspect. There is nothing to support this

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plea except some alleged revenue entries. It is settled law that in the absence of a plea no amount of evidence led in relation thereto can be looked into. Therefore, in the absence of a clear plea regarding sub tenancy (shikmi) the defendants cannot be allowed to build up a case of sub tenancy (shikmi). Had the defendants taken such a plea it would have found place as an issue in the suit. We have perused the issues framed in the suit. There is no issue on the point.

4. Relying on the above judgment, he submits that if the said

pleading with regard to the same is not there in absence of any

amendment the learned Court has wrongly allowed the same,

however, he further relied in the judgment of Hon'ble Supreme

Court in the case of Ramesh Chandra Agrawal & Ors. versus

Bhushan Ram reported in (1988) SCC OnLine Pat 151,

wherein at paragraph No.40, it has been held as under :-

40. If the plaintiff intended to bring any subsequent event to the notice of the revisional court, the same ought to have been done by filing an application for amendment of plaint and for adducing additional evidence in this regard which could have been considered on its own merit. If this court takes into consideration such an averment in the counter affidavit which has obviously been made by way of an after thought and dismiss the revision application on the basis thereof, great injustice will be done to the tenant- petitioner. This, in my opinion, is not permissible in law.

5. Relying on the above judgment, he submits in view of that

the learned Court has wrongly passed the order. He has taken the

Court to the impugned order dated 31.07.2024 and submits that the

finding of the learned Court is not recorded only the case of both

the sides has been stated and in one paragraph the learned Court

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has allowed the said application which is not a speaking order. On

this ground, he submits that the impugned order may kindly be set

aside.

6. Per contra, Mr. Indrajit Sinha, learned counsel appearing for

the opposite party Nos.1 to 6 draws the attention of the Court to

the plaint and submits that in paragraph No.5 and 6 of the plaint

pleadings are there and in view of that the contention of learned

counsel appearing for the petitioners are not correct. He further

refers relevant clause of Section 65(B) of the Indian Evidence Act

and submits that the parameters made therein have been fulfilled

and in view of that the learned Court has allowed the petition.

According to him, in light of sub-section 4 of Section 65(B), the

criteria made therein have been fulfilled, as such there is no

illegality in the impugned order. He relied in the judgment of

Hon'ble Supreme Court in the case of Arjun Panditrao Khotkar

versus Kailash Kushanrao Gorantyal and Others reported in

(2020) 7 SCC 1, wherein at paragraph No.60 it has been held as

under :-

60. It may also be seen that the person who gives this certificate can be anyone out of several persons who occupy a 'responsible official position' in relation to the operation of the relevant device, as also the person who may otherwise be in the 'management of relevant activities' spoken of in Sub-section (4) of Section 65B. Considering that such certificate may also be given long after the electronic record has actually been produced by the computer, Section 65B(4) makes it clear that it is sufficient that such person gives the requisite certificate to the "best of his knowledge

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and belief" (Obviously, the word "and" between knowledge and belief in Section 65B(4) must be read as "or", as a person cannot testify to the best of his knowledge and belief at the same time).

7. By way of referring to the said paragraph, he again took the

Court to sub-section 4 of Section 65-B of the Indian Evidence Act

and submits that once the certificate is made by the plaintiff that is

admissible. On this ground, he submits that there is no illegality in

the impugned order.

8. In view of above submission of learned counsel appearing

for the parties, the Court has gone through the materials on record.

It is an admitted position that the evidence on behalf of the plaintiff

was going on and in the midst of the said, the petition has been

filed for marking exhibit of the C.D. In the pleading particularly

paragraph Nos.5 and 6 on which the reliance has been placed by

learned counsel appearing for the opposite parties, the Court finds

that there are no pleadings of recording the voice in any particular

device and only the meeting dates have been disclosed. In the

certificate, the certificate is signed by the plaintiff himself wherein

the case has been made out that in the course of time the said CD

has been found by the mother of the deceased namely Shailesh

Agarwal and the mother is also plaintiff in the suit, however, the

said CD was found by the mother. She has not made the certificate

and the certificate has been made by another plaintiff No.1. In the

certificate the original mobile number and the laptop has also been

disclosed, however, the said devices have not been brought on

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record and in the form of CD the said has been tried to be exhibited

before the learned Court. Further there is no application for

amendment in the pleadings and in absence of any amendment

petition, the said petition has been filed before the learned Court

which has been allowed by the learned Court.

9. Admittedly, the certificate has been signed by the plaintiff

No.1 and even not by the person who has found the said CD, who

happened to be the mother of the deceased namely late Shailesh

Kumar Agarwal. In the above background, sub-section 4(c) of

Section 65B of the Indian Evidence Act is required to be looked into

which speaks as under :-

(4) (c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-

section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

10. In view of the above, it is crystal clear that the said

document and the CD is required to be signed by the responsible

person and if the mobile was found intact the sim card issued by

the mobile company that official can be said to be a competent

person to certify the said, if in view of the fact that the person

whose voice was recorded has already left for his heavenly abode

even the mother who has found the said CD has not signed the

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certificate. In the judgment relied by Mr. Indrajit Sinha, learned

counsel appearing for the opposite parties in the case of Arjun

Panditrao Khotkar versus Kailash Kushanrao Gorantyal and

Others (supra) the Hon'ble Supreme Court has held at paragraph

No.30 and 31 of the said judgment which is as under :-

30. Section 6(1), in essence, maintains the dichotomy between proof by 'primary' and 'secondary' evidence - proof by production of the 'document' itself being primary evidence, and proof by production of a copy of that document, as authenticated, being secondary evidence. Section 6(5), which gives teeth to the person granting the certificate mentioned in Section 5(4) of the Act, by punishing false statements wilfully made in the certificate, has not been included in the Indian Evidence Act. These sections have since been repealed by the Civil Evidence Act of 1995 (UK), pursuant to a UK Law Commission Report published in September, 1993 (Law Com. No. 216), by which the strict rule as to hearsay evidence was relaxed, and hearsay evidence was made admissible in the circumstances mentioned by the Civil Evidence Act of 1995. Sections 8, 9 and 13 of this Act are important, and are set out hereinbelow:

"8. Proof of statements contained in documents.

(1) Where a statement contained in a document is admissible as evidence in civil proceedings, it may be proved--

(a) by the production of that document, or

(b) whether or not that document is still in existence, by the production of a copy of that document or of the material part of it, authenticated in such manner as the court may approve.

(2) It is immaterial for this purpose how many removes there are between a copy and the

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original.

9. Proof of records of business or public authority.

(1) A document which is shown to form part of the records of a business or public authority may be received in evidence in civil proceedings without further proof.

(2) A document shall be taken to form part of the records of a business or public authority if there is produced to the court a certificate to that effect signed by an officer of the business or authority to which the records belong. For this purpose--

(a) a document purporting to be a certificate signed by an officer of a business or public authority shall be deemed to have been duly given by such an officer and signed by him; and

(b) a certificate shall be treated as signed by a person if it purports to bear a facsimile of his signature.

(3) The absence of an entry in the records of a business or public authority may be proved in civil proceedings by affidavit of an officer of the business or authority to which the records belong. (4) In this section--

"records" means records in whatever form; "business" includes any activity regularly carried on over a period of time, whether for profit or not, by any body (whether corporate or not) or by an individual;

"officer" includes any person occupying a responsible position in relation to the relevant activities of the business or public authority or in relation to its records; and "public authority" includes any public or statutory undertaking, any government department and any person holding office under Her Majesty.


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              (5)   The      court   may,   having   regard    to    the

circumstances of the case, direct that all or any of the above provisions of this section do not apply in relation to a particular document or record, or description of documents or records." Section 13 of this Act defines "document" as follows:

"document" means anything in which information of any description is recorded, and "copy", in relation to a document, means anything onto which information recorded in the document has been copied, by whatever means and whether directly or indirectly;"

31. Section 15(2) of this Act repeals enactments mentioned in Schedule II therein; and Schedule II repeals Part I of the Civil Evidence Act, 1968 - of which Sections 5 and 6 were a part. The definition of "records" and "document" in this Act would show that electronic records are considered to be part of "document" as defined, needing no separate treatment as to admissibility or proof. It is thus clear that in UK law, as at present, no distinction is made between computer generated evidence and other evidence either qua the admissibility of, or the attachment of weight to, such evidence.

11. In the case of Ram Singh and Others versus Col. Ram

Singh reported in 1985 0 Supreme (SC) 258 admissibility of

the tape and voice recording has been considered and in that case

in R. v. Maqsud Ali, (1965) 2 All ER 464 it was observed which

has been noted in paragraph Nos.33 and 34 of the said judgment

which is as under :-

33. "We can see no difference in principle between a tape recording and a photograph. In saying this we must not be taken as saying that such recordings are admissible whatever the circumstances, but it does appear to this court wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the

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accuracy of the recording can be proved and the voices recorded properly identified; provided also that the evidence is relevant and otherwise admissible, we are satisfied that a tape recording is admissible in evidence. Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case. There can be no question of laying down any exhaustive set of rules by which the admissibility of such evidence should be judged.

34. We find ourselves in complete agreement with the view taken by Marshall, J., who was one of the celebrate Judges of the Court of Criminal Appeal. To the same effect is another decision of the same court in R. v. Robson [1972] 2 All E.R. 699, where Shaw, J., delivering a judgment of the Central Criminal Court observed thus:

"The determination of the question is rendered more difficult because tape recordings may be altered by the transposition, excision and insertion of words or phrases and such alterations may escape detection and even elude it on examination by technical experts. ................... ............... ........... During the course of the evidence and argument on the issue of admissibility the recordings were played back many times. In the end I came to the view that in continuity, clarity and coherence their quality was, at the least, adequate to enable the jury to form a fair and reliable assessment of the conversation which were recorded and that with an appropriate warning the jury would not be led into and interpretation unjustifiably adverse to the accused. Accordingly, so far as the matter was one of discretion, I was satisfied that / injustice could arise from admitting the tapes in evidence and that they ought not to be excluded on this basis."

12. In view of the above, it is crystal clear that in absence of

any pleading and subsequent amendment the said petition has been

allowed by the learned Court and further the certificate issued with

regard to the said device is also not within the parameters of sub

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section 4(c) of Section 65-B of the Indian Evidence Act. Further the

learned Court by the impugned order has been pleased to record

the argument of both the sides and one paragraph has come to the

conclusion to allow the said petition. The reason has not been

disclosed as to how the submission of the parties are correct or not

and impugned order is not a speaking order.

13. In light of the above, the Court finds that the said order is