Madhya Pradesh High Court

Bhupesh Agrawal vs S.M. Choudhary on 24 February, 2021

Author: 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.

W. 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

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

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

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

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.

W. P. No. 11848/ 2017

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

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;

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.

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

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