Rakesh Kumar Lodhi vs Nawla
2021 Latest Caselaw 8204 MP

            HIGH COURT OF MADHYA PRADESH,
                  BENCH AT GWALIOR
                          W.P.No.1206/2013
     ( Rakesh Kumar Lodhi and others Vs. State of M.P. and others )
                                    (1)

Gwalior, dated : 04.12.2021

        Shri D.D.Bansal, learned counsel for the petitioners.

        Shri R.K.Upadhyay, learned counsel for the L.Rs. of

respondent No.1.

This Writ Petition under Article 227 of the Constitution of

India is directed against the order dt.22.01.2013 (Annexure P/1), by

which the trial court has allowed the application filed by the plaintiff

under Section 65 (c) of the Evidence Act for taking the secondary

evidence on record.

2. The facts necessary for disposal of the instant Writ Petition, in

nutshell, are to the effect that earlier similar application was filed for

taking on record same secondary evidence i.e. certified copy of

document, but was rejected on 25.08.2012 with the observation that

the plaintiff may apply for certified copy of the document from the

office of SDO as the alleged document was said to be an order

passed by SDO Basoda on 27.03.1985. It further appears that second

application has been filed before the Court below on 29.10.2012

with averment that an application was filed in the office of Collector,

the appellate authority. An endorsement has been made by the

copying section on the overleaf portion of the application that the

original copy of the order i.e. 27.03.1985 is misplaced and not

traceable. One certified copy of that order was issued on 01.04.1985.

3. Trial Court by the impugned order has allowed the application

under Section 65 (c) of the Evidence Act.

HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR W.P.No.1206/2013 ( Rakesh Kumar Lodhi and others Vs. State of M.P. and others )

4. Shri D.D.Bansal, learned counsel for the petitioner/defendant

contends that the trial court has committed a grave illegality and

jurisdictional error while allowing the application for the reason that

for want of specific endorsement about the details of the person in

whose favour certified copy of the order dt.27.03.1985 was issued on

01.04.1985, the photo copy of the document could not have been

taken on record as secondary evidence in view of Section 63 sub

Section (3), illustration (a). For ready reference, Section 63 sub

Section (3), illustration (a) is quoted below :-

"63. Secondary evidence.- Secondary evidence means and includes -

(1) -- --

(2) -- --

(3) copies made from or compared with the original; Illustration.

(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."

Therefore, the document could not have been treated to be a

secondary evidence to be taken on record. Further elaborating his

submission, learned counsel submits that from a careful reading of

the afore-quoted provision and illustration, it is vividly clear that

unless it is proved that a thing photographed was the original,

photograph of an original can not be accepted as secondary evidence

of its contents. In the instant case, unless the authenticity of the

certified copy allegedly issued on 01.04.1985 of the document in

question and the factum of non-existence of certified copy is

established with conclusive proof of possession and availability HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR W.P.No.1206/2013 ( Rakesh Kumar Lodhi and others Vs. State of M.P. and others )

thereof, the alleged photocopy placed on record could not have been

treated to be secondary evidence of the contents of the certified copy

(original copy). Hence, the document could not be said to be

secondary evidence and consequently, the same could not have been

accepted in evidence under Section 65 (c) of the Evidence Act.

Learned counsel relies upon the judgment of this Court in the case of

Gopal Sharma Vs. Smt. Savitri Devi Ojha reported in 1994 (1)

MPWN 192 and Tawar Singh Vs. Ranjit Singh reported in 2001

(I) MPWN 54.

5. Per contra, Shri R.K.Upadhyay, learned counsel for the L.Rs.

of respondent No.1 relying on the judgment of Hon'ble Supreme

Court in the case of S.Saktivel (dead) by L.Rs. Vs. M.Venugopal

Pillai and others reported in AIR 2000 SC 2633 submits that even

if the certified copy is not available, the photo copy thereof can be

accepted as secondary evidence.

6. This Court has carefully considered the submissions advanced

and perused the judgments cited by either party. Before adverting to

rival contentions, it is expedient to observe that unless the document

sought to be produced satisfies the requirement of secondary

evidence as provided for under Section 63 of the Evidence Act, the

same can not be taken on record under Section 65 (c) of the

Evidence Act. The factual matrix in hand undisputedly suggests that

the document sought to be produced is neither a certified copy nor

copy made from the original by mechanical process, therefore, HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR W.P.No.1206/2013 ( Rakesh Kumar Lodhi and others Vs. State of M.P. and others )

Sections 63 (1) and (2) of the Evidence Act are not applicable. Photo

copy, though, is claimed to be of the certified copy but it is not a

copy which can be compared to certified copy, as the certified copy

itself is not available, therefore, as a matter of fact, sub section (3) of

Section 65 shall have no application.

7. Now the question arises as to the status of the document

sought to be produced, which is claimed to be photo copy of the

certified copy. True, Hon'ble Supreme Court in the case of

S.Saktivel (supra) has ruled that a photo copy of a lost certified

copy may be taken as secondary evidence, nevertheless, in that case

the certified copy of the document was undisputed and the same was

lost. However, in the instant case, such is not the position on facts. It

is not the case of the respondent/plaintiff that certified copy was

obtained by him and the same is lost. Further the alleged

endorsement on the overleaf portion of the application also does not

spell out that the certified copy was issued in whose favour. Now

neither the source of certified copy nor the factum of certified copy

are on record. There is also a serious dispute about the existence of

the certified copy. In such circumstances, such document claimed to

be a photo copy of certified copy does not qualify the definition of

secondary evidence as provided for under Section 63 of the Evidence

Act. Trial Court has failed to take note of the requirement/ingredients

of Section 63 of the Evidence Act while accepting the questioned

document as secondary evidence. In such circumstances, there HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR W.P.No.1206/2013 ( Rakesh Kumar Lodhi and others Vs. State of M.P. and others )

appears to be an illegality crept in the impugned order and

consequently a jurisdictional error. This Court is of the view that the

document could not have been accepted as secondary evidence under

Section 65 of the Evidence Act. The Impugned order dt.22.01.2013

(Annexure P/1) is therefore quashed.

8. Writ Petition, accordingly stands allowed.

(ROHIT ARYA) JUDGE

SP SANJEEV KUMAR PHANSE 2021.12.07 11:46:03 +05'30'