Hariprasad vs Radheshyam
2021 Latest Caselaw 5963 MP

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  HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
                          MP NO.2991/2021
1.Hariprasad s/o late Shri Mahadev Prasad
Age 62 years, occupation Business
Residing at Shujalpur Mandi
Dist.Shajapur M.P
2.Govind s/o Late Shri Mahadev prasad
Age 48 years, occupation Guest Teacher
Residing at Shujalpur Mandi
Dist. Shajapur M.P
3.Anil s/o Late Shri Mahadev prasad
Age 52 years, occupation Business
Residing at Shujalpur Mandi
Dist. Shajapur M.P
4.Smt.Manjula w/o Shri Vinod Kumar
d/o Late Shri Mahadev Prasad
Age 59 years, Occupation NIL
Residing at Byawar, Dist. Ajmer (Raj.)
5.Smt.Meena w/o Shri Santosh Kumar
d/o Late Shri Mahadev prasad
Age 56 years occupation NIL
Residing at Chitawad Corner
Indore M.P
6.Smt.Rashmi w/o Shri Govind Agrawal
Age 42 years, occupation Govt. Service
Residing at Shujalpur Mandi
Dist. Shajapur M.P    .................... PETITIONERS/
PLAINTIFFS
Versus
Radheshyam s/o Late Shri Mahadev Prasad
Age 42 years, occupation Business
Residing at In front of Post Office
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Shujalpur Mandi,
Dist. Shajapur ...................               RESPONDENT/ DEFENDANT
Dated : 24.09.2021: (Indore):
         Shri Vinay Gandhi, learned counsel for the petitioners, heard on
admission and interim relief .
         Petitioners/plaintiffs have filed the present petition being
aggrieved by the order dated 20.12.2019 passed by Civil Judge Class-I
Shujalpur, District Shajapur whereby the application filed by the
defendants under section 65 & 66 of the Evidence Act has been
allowed.
         Facts

of the case in short for disposal of this petition are as under:

1. Petitioners have filed a suit for declaration, partition, possession, mesne profit, and permanent injunction against the sole defendant. The plaintiffs are claiming 5/6th share in the house described in para 2 of the plaint along with possession and mesne profit. The defendant has filed the written statement on 4.12.2017.

2. During evidence of the plaintiffs, the defendant has filed an application under Order 12 Rule 8 of the CPC seeking direction for production of original copy of the agreement dated 24.6.2012 from the possession of the plaintiffs. Since the plaintiffs have denied its possession, hence the defendant filed an application u/s 65 & 66 of the Evidence Act seeking permission to file a carbon copy of the agreement dated 24.6.2012 as secondary evidence . The aforesaid application was opposed by the plaintiffs. Vide order dated 29.8.2018 the application filed under Order 12 Rule 8 was rejected as well as application filed under section 65 & 66 of the Evidence Act was also rejected. Being aggrieved by the aforesaid order the defendant preferred miscellaneous petition i.e., M.P. No. 1058/2019 on the ground that the document dated 24.6.2012 had already been impounded by the Collector of Stamps vide order dated 12.4.2014 and the said order was not produced by the plaintiffs, despite its knowledge therefore, the applications were rejected by the learned trial court. Vide order dated 10.4.2019 this court has disposed of the M.P. with

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liberty to the defendant to file a fresh application in accordance with law disclosing therewith all the necessary material.

3. After the aforesaid order respondent/defendant filed a fresh application under section 65 & 66 of the Evidence Act. The application was opposed by the plaintiff and vide order dated 20.12.2019 learned court has allowed the application permitting the petitioner to file the document dated 24.6.2021 as secondary evidence, hence the present petition before this court.

I have heard Shri Vinay Gandhi, learned counsel for the petitioner.

4. Shri Gandhi submits that the learned trial court has over looked the provisions of section 42 of the Indian Stamp Act which stipulates that the document shall be admissible only upon endorsement by the Collector. The original document is admissible subject to the compliance of section 42 of the Indian Stamp Act and the carbon copy must also contain endorsement of the Collector, failing which same is not admissible in evidence . He has placed reliance over the judgment passed by the Apex Court mentioned in ground 6.2 & 6.4 of the memo of the petition, hence prays for setting aside of the impugned order.

5. The petition filed by the plaintiffs /petitioners under Article 227 of the Constitution of India is absolutely misconceived and misuse of process of law because the defendant filed an application under Order 12 Rule 8 CPC contending that the original copy of the document dated 24.6.2012 is in possession of the plaintiffs and requested for production before the court. The plaintiffs filed a reply and denied the possession of the said document which gave the defendant an opportunity to file an application u/s 65 & 66 of the Evidence Act. The court has rejected the application as the document was not sufficiently stamped. The aforesaid order was challenged by the defendant before this court with the copy of the order of the Collector dated 21.4.2014 impounding the aforesaid document. The plaintiffs had deposited Rs.1100/- and obtained the impounded original copy of the document and despite that they did not produce before the court then the defendant had to file second application u/s 65 & 66 of the

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Evidence Act. Even that application was opposed by the plaintiffs and the court has allowed vide impugned order.

6. Now the plaintiffs /petitioners are raising technical objection that in the second copy/ carbon copy there is no endorsement by the Collector of stamps in respect of impounding. In the first application filed under Order 8 Rule 12 CPC and second application under section 65 & 66 of the Evidence Act the plaintiffs did not disclose before the court that the said document had already been impounded by the Collector at their instance. The plaintiff Govind and Radheshyam Agrawal (defendant) filed an application before the Collector on 3.4.2014 which was registered as case No.1/B-103/2014-15 and the same was allowed by order dated 21.4.2014 and thereafter Govind had deposited the impounding fess of Rs.1100/- on 21.4.2014, therefore, it is not in dispute that the original document dated 24.6.2012 had already been impounded. Govind did apply for return of the original document before the Collector of Stamps on 3.4.2014. Although the court has allowed the application for production of the document dated 24.6.2021 as secondary evidence but it is not in dispute that it is carbon copy of the original document which comes under the category of primary evidence. Only original copy of any document is liable to be impounded not each carbon copy, learned trial court has not committed any mistake in allowing the application, hence the writ petition has not substance and liable to be dismissed.

7. This is a case in which the plaintiff / petitioners are liable to settled with heavy cost for misusing the process of law and wasting the precious time of the trial court and High Court. Impounding of the document was in the knowledge of the plaintiffs but it was not disclosed to the trial court got the applications dismissed, defendant had to approach this court by way of writ petition and after remand he filed the fresh application. After all this exercise the plaintiffs have filed this writ petition under art 227 of the Constitution of India. A cost of Rs. 25000.00 (in words: Twenty-five thousand only) is hereby

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imposed on plaintiffs, which shall be deposited before the civil court in case of dismissal of the suit filed by the plaintiffs/petitioners.

(VIVEK RUSIA) Digitally signed by HARI JUDGE KUMAR C G NAIR Date: 2021.09.28 14:45:02 hk/ +05'30'