Dinesh Kashyap vs Rajendra Prasad Goyal
2022 Latest Caselaw 3372 MP

                                                                    01

             HIGH COURT OF MADHYA PRADESH
                        MP No.2308/2021
     (Dinesh Kashyap & Ors. Vs. Rajendra Prasad Goyal & Ors.)

Gwalior, Dated: 10.3.2022
       Shri Santosh Agrawal, learned counsel for the petitioners.

       Shri Dharmendra Dwivedi, learned counsel for respondents

No.1 to 4.

Petitioners have filed this petition under Article 227 of the

Constitution of India being aggrieved by the order passed by the Civil

Judge, Class I, Morena, in Civil Suit No.1-A/2015 on 17.1.2020.

2. Petitioners' father Lalaram filed a civil suit against the

respondents to declare him Bhumiswami of House No.75/05 situated

near Jain Temple, Bhoi Pada, Morena (herein after called as "the

dispute house") on the ground that he is in possession of the aforesaid

house for the last 75 years through his predecessor. Name of his

predecessor Nathua Parma Bhoi was recorded in municipal records.

After the death of Nathu, Dullaram Bhoi became owner of the

disputed house and after Dullaram Bhoi, father of the petitioners

Lalaram became owner of the disputed house. Lalaram came to know

that respondents want to sell the aforesaid house, hence, he filed the

suit seeking declaration and injunction.

3. Per contra, defendants No.1 to 4 by way of written statement

and counter claim asserted that they are the owner of the disputed

house and in the disputed house Dullaram, father of plaintiff Lalaram,

was a tenant of predecessor of respondents No.1 to 4. They denied the

plaint averments and by counter claim sought eviction of the plaintiffs

from the aforesaid property.

4. On the basis of aforesaid pleadings, learned trial Court framed

issues and started recording of evidence. Respondents (in the capacity

of plaintiffs in their counter claim) filed an application under Section

65 of the Evidence Act for admitting the photocopy of the rent note

and counterpart of rent receipts No.0356, 0357, 0393, 0467 and 0503

alleged to be signed by Badriprasad, predecessor of the plaintiffs,

while paying rent, on the ground that on 20.8.2018 when defendant

No.1- Rajendra Prasad Goyal was going to District Court from his

house along with aforesaid Raseed Katta, such Raseed Katta fell in

the way and the same could not be found even after various efforts.

5. In reply to the aforesaid application under Section 65 of the

Evidence Act, plaintiffs submitted that though defendants have

pleaded that they have purchased the said property from Municipal

Corporation by Sultani sale-deed, but they have not produced such

Sultani sale-deed. They have prepared forged and fabricated

documents. In absence of originals, they cannot be admitted as

secondary evidence.

6. After hearing both the parties, the trial Court observing that as

per respondents original rent receipts have lost and respondents are

producing photocopy of the receipts which can be taken as secondary

evidence, allowed the application of the respondents on 20.9.2018.

Being aggrieved by the same, petitioners filed a review application

under Order 47 Rule 1 CPC which was partly allowed on 17.1.2020

holding that as defendants only prayed for admitting rent receipts as

secondary evidence, earlier order in regard to admitting rent note as

secondary evidence is recalled. The trial Court further held that as

regards admitting rent receipts as secondary evidence, there is no

error in the earlier order, hence, dismissed the application in that

regard.

7. Aggrieved by the aforesaid order, petitioners have filed this

petition on the ground that in the application under Section 65 of the

Evidence Act it is not mentioned that such photocopies are compared

with original, hence, they are highly suspicious. On the photocopy of

rent receipts signatures of father of the petitioners are not there.

Respondents have prepared forged and fabricated documents and took

photocopy of the same. As per Section 62 of the Evidence Act,

document will be proved by submitting original document for the

inspection of the Court. Secondary evidence relating to document can

be given 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.

8. Learned counsel for respondents No.1 to 4 has supported the

impugned order.

9. In the present case, in the aforesaid scenario it is to be

examined that by allowing the application of the respondents for

taking rent receipts as secondary evidence, trial Court has committed

any illegality or not ?

10. The respondents submitted the application under Section 65 of

the Evidence Act stating therein that photocopy of counterparts of

four rent receipts be treated as secondary evidence as originals are

lost.

11. In the case of Kalyan Singh vs. Smt. Chhoti and others

reported in AIR 1990 SC 396 the Apex Court has held that ordinary

copy of the sale-deed cannot be considered as secondary evidence.

Para-25 of the said judgment is reproduced below:

"25. The High Court said, and in our opinion very rightly that Ex.3 could not be regarded as secondary evidence. Section 63 of the Evidence Act mentions five kinds of secondary evidence. Clauses (1),(2) and (3) refer to copies of documents, clause (4) refers to counter parts of documents and clause (5) refers to oral accounts of the contents of documents. Correctness of certified copies referred to in clause (1) is presumed under Section 79, but that of other copies must be proved by proper evidence. A certified copy of a registered sale deed may be produced as secondary evidence in the absence of the original. But in the present case Ex.3 is not a certified copy. It is just an ordinary copy. There is also no evidence regarding contents of the original sale deed. Ex.3 cannot, therefore, be considered as secondary evidence. The appellate Court has a right and duty to exclude such evidence"

12. In the case of Ratanlal vs. Kishanlal, 2012 (III) MPJR 24,

this Court has held as under :-

"12. According to me the photocopy is neither a primary nor secondary evidence and in this regard decision of this Court Ramesh Verma and others etc. v. Smt.Lajesh Saxena and others etc. AIR 1998 M.P 46 may be seen. Apart from this even if it is stretched to the

extent to bring the photocopy of will Ex.P/1 within the sphere of secondary evidence,the plaintiff was required to satisfy the ingredients to Section 65 of the Evidence Act which speaks about the secondary evidence. The plaintiff was further required to examine the person who took out the photocopy of the original. This is very much essential because it is a matter of common knowledge that by putting another writing written on a separate paper if that paper is kept upon the original document and photocopy is taken out, the said photo copy cannot be said to be a true photocopy of the original document."

13. The photocopy is neither a primary evidence nor secondary

because the party is required to prove when and where the photocopy

was taken and it is the same and exact copy of the original.

14. Therefore, in view of the above law, trial Court has committed

error while allowing the application under section 65 of the Evidence

Act admitting the photocopy of the counterparts of the rent receipts as

secondary evidence without leading any evidence in regard to

veracity of those photocopies. Accordingly, this petition is allowed

and impugned orders dated 17.1.2020 is set aside.

(Deepak Kumar Agarwal) Judge ms/-

MADHU SOODAN PRASAD 2022.03.12 15:01:58 +05'00'