Madhya Pradesh High Court

Pushp Kumar vs The State Of Madhya Pradesh on 11 March, 2022

Author: Arun Kumar Sharma

                               1
      IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
                               BEFORE
              HON'BLE SHRI JUSTICE ARUN KUMAR SHARMA
                       ON THE 11th OF MARCH, 2022

                    MISC. PETITION No. 5151 of 2018

        Between:-
        PUSHP KUMAR S/O LATE SHRI RAMESHWARDAS
        MALANI , AGED ABOUT 60 YEARS, ABOVE STATE
        BANK OF INDIA BRANCH MANDI CHOW
        BURHANPUR DISTT. BURHANPUR M.P. AT
        PRESENT 13-A AVANTI APARTMENT NEW FLANK
        ROAD SION EAST MUMBAI 22 (MAHARASHTRA)

                                                           .....PETITIONER
        (BY SHRI ABDUL WAHEED CHOUDHARY, ADVOCATE )

        AND

1.      THE STATE OF MADHYA PRADESH THR.
        COLLECTOR BURHANPUR (MADHYA PRADESH)

2.      S E C R E TA R Y GRAM PANCHYAT  AMAGIRD
        AMAGIRD TEH. DISTT. (MADHYA PRADESH)

3.      CHIEF EXECUTIVE OFFICER JANAPAD PANCHYAT
        BURAHANPUR (MADHYA PRADESH)

4.      SMT. RAMA MALANI W/O PUSHP KUMAR , AGED
        ABOUT 56 YEARS, STATE BANK OF INDIA BRANCH
        MANDI CHOWK (MADHYA PRADESH)

5.      RAJENDRA      MALANI    S/O   LATE   SHRI
        RAMESHWARDAS MALANI , AGED ABOUT 55
        YEARS, STATE BANK OF INDIA CHOWK (MADHYA
        PRADESH)

6.      SMT. VEENA MALANI W/O SHRI RAJENDRA
        MALANI , AGED ABOUT 51 YEARS, STATE BANK
        OF INDIA CHOWK (MADHYA PRADESH)

7.      RAVINDRA SUGANDHI S/O GOVERDHANDAS
        SUGANDHI R/O SILAMPURA (MADHYA PRADESH)

8.      DREAM      BULIDERS D E V E L O P E R S DISTT-
        BURHANPUR (MADHYA PRADESH)

9.      JUGAL KISHORE S/O RAMVALLABHCHANDAK
        LALBAGH (MADHYA PRADESH)

10.     PRAVVEN KUMAR S/O RAMDAS CHOUKSE R/.O
        DATTATRYA NAGAR RASTIPURA (MADHYA
        PRADESH)

11.     MULLA JANIL AHMED S/O SAFDAR ALI
        B H AT T I WA L A DISTT-BURHANPUR (MADHYA
        PRADESH)

                                                         .....RESPONDENTS
                                    2
          (BY SHRI Y.M. TIWARI, LEARNED COUNSEL FOR THE
          RESPONDENT NOS. 8 TO 11.
          MS. PRIYANKA JAIN, LEARNED PANEL LAWYER FOR THE STATE.)

      This petition is   coming on for admission this day, the court passed the
following:
                                       ORDER

The petitioner/plaintiff havs filed the present petition being aggrieved by order dated 24/09/2018 passed by IIIrd Civil Judge, Class-II, Burhanpur in Civil Suit No. 68A/2015, whereby applications filed u/s. 65 of the Indian Evidence Act and under Section 151 of C.P.V. have been rejected by holding that the documents sought to be proved by way of secondary evidence is a revenue map, which comes under the ambit of public document, which can only be proved by way of secondary evidence through a certified copy of the said document and opined that there cannot be two affidavits under Order 18 Rule 4 of C.P.C. .

2. The petitioner/plaintiffs has filed a civil suit for declaration, permanent injunction and mandatory injunction against the defendants in relation to the property bearing Khasra Nos. 622 ad measuring area 7.68 Acre and Khasra No. 626/1 ad measuring area 2.36 Acre situated in gram Amagrid, wherein the defendant Nos. 4 to 7 are the owners and Bhu Swami up to their 1/5 share each in the property purchased by them by registered sale deed dated 29/03/1999. The defendant Nos. 1 to 3 are trying to encroach upon the about land and trying to broad the small path of 40 ft. The land of plaintiff and defendant Nos. 4 to 7 is shown in the najri map by red lines attached with the plaint (Annexure P/1). The land of defendant Nos. 8 to 10 with the help of defendant Nos. 1 and 3 is shown in the najri map by orange color & A,B,C,D and E. The defendant Nos. 1 to 7 are proceeded exparte and they have not filed written statement (Annexure P/2); whereas defendant Nos. 8 to 10 have filed written statement and have denied the averments of the plaint. The petitioner/plaintiff has amended the pleading of the plaint and the same has been incorporated in the plaint as para no. 2(da). On 07/01/2018, the petitioner/plaintiff has filed an application under Section 65 of the Evidence Act (Annexure P/3) supported with the affidavit and photocopy of revenue map of gram Amagird of the year 1995-1996 annexed with the report on the application for giving certified copy of the aforesaid map, wherein, the copying

section has refused to given the certified copy with the note thereon that the original is not available. Thereafter, on 24/09/2018, the petitioner/plaintiff filed another application under Section 151 of C.P.C. alongwith additional affidavit under Order 18 Rule 4 C.PC. (Annexure P/4) for taking on record. Both the applications have been rejected by the trial Court, vide impugned order, which is a subject matter of challenge in the present petition.

3. Learned counsel for the petitioner/plaintiff submits that the trial Court has committed error in rejecting the applications filed by him holding that the documents sought to be proved by way of secondary evidence is a revenue map,

which comes under the ambit of public document, which can only be proved by way of secondary evidence through a certified copy of the said document and opined that there cannot be two affidavits under Order 18 Rule 4 of C.P.C. Hence, he prayed for setting aside of the impugned order.

4. On the other hand, learned counsel for the respondents have vehemently opposed the prayer by contending that the trial court has not committed any illegality or perversity in rejecting the said applications filed by the petitioner/plaintiff and the impugned order is based on proper appreciation of evidence, therefore, no interference is warranted by this Court. Under these circumstances, they prayed for dismissal of the petition.

5. I have heard learned counsel for the parties and perused the material available on record.

6. That Section 62 of the Act of 1872 define the Primary Evidence and according to which primary evidence means the document itself produced for the inspection of the Court. There is an Explanation-1 to Section 62 which provide that where a document is executed in several parts, each part is primary evidence of the document. The carbon copy is always prepared along with the original copy. Therefore, both the documents, original as well as carbon, are prepared together. Therefore, as per Explanation-I, both are primary evidence. This Court in the case of Satish Kumar v/s Lalsingh [1982 JLJ 738] has held that carbon copy of a document is a primary or original document can be validated under Section 35 of the Stamps Act. Allahabad High Court in the case of Smt. Kamala Rajamanikkam v/s Smt. Sushila Thakur Dass [AIR 1983 Allahabad 90] has

also held that the carbon copy prepared along with the original, then each one is original copy. The same view has been followed by Gujrat High Court in the case of Bhagwanji and Kalyanji v/s Punjabhai Hajabhai Rathod, reported in AIR 2007 Gujrat 88.

7. The Supreme Court in the case of Prithi Chand v/s State of Himachal Pradesh [AIR 1989 SC 702] has held that carbon copy made by one uniform process of certificate of doctor is admissible being a primary evidence.

8. The Apex Court in the case of Narbada Devi Gupta v/s Birendra Kumar Jaiswal : (2003) 8 SCC 745 has held that mere production and marking of a document as exhibit by the Court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence. In the case of Life Insurance Corporation of India v/s Ram Pal Singh Bisen : (2010) 4 SCC 491, the Apex Court has again held that mere making of exhibit on a document does not dispense with its proof, which is required to be done in accordance with law. The aforesaid view further been followed by the Apex Court in the case of Rakesh Mohindra v/s Anita Beri : (2016) 16 SCC 483. The Apex Court in this case has further held that if a party wishes to lead secondary evidence, the Court is obliged to examine the probative value of the document produced in the Court or their contents and decide the question of admissibility of a document in secondary evidence. The party has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. Para 22, 23, 24, 25 and 26 of the judgment are reproduced below :-

"22. It is well settled that if a party wishes to lead secondary evidence, the Court is obliged to examine the probative value of the document produced in the Court or their contents and decide the question of admissibility of a document in secondary evidence. At the same time, the party has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. It is equally well settled that neither mere admission of a document in evidence amounts to its proof nor mere making of an exhibit of a document dispense with its proof, which is otherwise required to be

done in accordance with law.

23. In the case of M.Chandra v/s M. Thangamuthu (2010) 9 SCC 712, this Court considered the requirement of Section 65 of the Evidence Act and held as under:-

" 47. We do not agree with the reasoning of the High Court. It is true that a party who wishes to rely upon the contents of a document must adduce primary evidence of the contents, and only in the exceptional cases will secondary evidence be admissible. However, if secondary evidence is admissible, it may be adduced in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in another form. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It should be emphasised that the exceptions to the rule requiring primary evidence are designed to provide relief in a case where a party is genuinely unable to produce the original through no fault of that party."

24. After considering the entire facts of the case and the evidence adduced by the appellant for the purpose of admission of the secondary evidence, we are

of the view that all efforts have been taken for the purpose of leading secondary evidence. The trial court has noticed that the photocopy of the Exhibit DW-2/B came from the custody of DEO Ambala and the witness, who brought the record, has been examined as witness. In that view of the matter, there is compliance of the provisions of Section 65 of the Evidence Act. Merely because the signatures in some of the documents were not legible and visible that cannot be a ground to reject the secondary evidence. In our view, the trial court correctly appreciated the efforts taken by the appellant for the purpose of leading secondary evidence.

25. For the reasons aforesaid, the impugned order passed by the High Court cannot be sustained in law. The appeal is accordingly allowed and the order passed by the High Court is set aside.

26. However, we make it clear that mere admission of secondary evidence, does not amount to its proof. The genuineness, correctness and existence of the document shall have to be established during the trial and the trial court shall record the reasons before relying on those secondary evidences."

9. In view of the above case law, the impugned order is hereby set-aside and the matter is remitted back to the concerned Civil Court to decide afresh in accordance with law as discussed above.