Madhya Pradesh High Court
M/S G.G. Real Estate Private Limited M/S ... vs Smt. Shanta Bai on 12 December, 2023
Author: Vivek Rusia
Bench: Vivek Rusia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 12 th OF DECEMBER, 2023
MISC. PETITION No. 6407 of 2023
BETWEEN:-
M/S G.G. REAL ESTATE PRIVATE LIMITED M/S SITA
SHREE FOODS PRIVATE LIMITED THROUGH
DIRECTOR DINESHCHAND JI AGARWAL S/O
JAGDISHCHANDRA AGARWAL, AGED ABOUT 60 YEARS,
OCCUPATION: BUSINESS 85, JANKI NAGAR MAIN ROAD
DISTRICT INDORE (MADHYA PRADESH)
.....PETITIONER
(SHRI ANENDRA SINGH PARIHAR, LEARNED COUNSEL FOR THE
PETITIONER.)
AND
1. SMT. SHANTA BAI W/O LATE SHRI HAZARI
SINGH, AGED ABOUT 60 YEARS, OCCUPATION:
HOUSEWIFE AND AGRICULTURE BALAJI NAGAR,
BAALGARH ROAD DISTRICT DEWAS (MADHYA
PRADESH)
2. ASHISH S/O LATE SHRI HAZARI SINGH BALAJI
NAGAR, BAALGARH ROAD DISTRICT DEWAS
(MADHYA PRADESH)
3. SMT. VIDHA D/O LATE SHRI HAZARI SINGH
OCCUPATION: HOUSEWIFE BALAJI NAGAR,
BAALGARH ROAD DISTRICT DEWAS (MADHYA
PRADESH)
4. SMT. MADHU D/O LATE SHRI HAZARI SINGH
BALAJI NAGAR, BAALGARH ROAD DISTRICT
DEWAS (MADHYA PRADESH)
5. SMT. BABITA D/O LATE SHRI HAZARI SINGH
OCCUPATION: HOUSEWIFE AND AGRICULTURE
BALAJI NAGAR, BAALGARH ROAD DISTRICT
DEWAS (MADHYA PRADESH)
6. SMT. KABITA D/O LATE SHRI HAZARI SINGH
2
BALAJI NAGAR, BAALGARH ROAD DISTRICT
DEWAS (MADHYA PRADESH)
7. KU. PRAMILA D/O LATE SHRI HAZARI SINGH
OCCUPATION: HOUSEWIFE BALAJI NAGAR,
BAALGARH ROAD DISTRICT DEWAS (MADHYA
PRADESH)
8. STATE OF M.P. THROUGH COLLECTOR DEWAS,
COLLECTOR OFFICE, MOTI BANGLA DIST.
DEWAS (MADHYA PRADESH)
.....RESPONDENTS
(NONE FOR THE RESPONDENTS.)
Th is petition coming on for hearing this day, th e court passed the
following:
ORDER
01. The petitioner has filed the present petition being aggrieved by order
dated 18.8.2023 whereby the application filed by it u/s. 65 of the Indian
Evidence Act seeking permission to exhibit photocopy of the agreement to sale
dated 26.11.2010 as secondary evidence.
02. The petitioner/plaintiff filed the suit for specific performance of
contract in the year 2013 on the basis of agreement to sale executed by Late
Hajari Singh, the husband and father of the defendants in respect of sale of land
bearing survey numbers mentioned in Para 4 of the plaint. The said agreement
was executed on 26.11.2010 for total sale consideration of Rs.18,22,500/- with
a condition that the sale-deed would be executed after the mutation of name of
Hajarisingh and after obtaining permission and NOC. According to the plaintiff,
a part of the said sale consideration was paid to Late Hajarisingh but he expired
and the sale-deed could not be executed. Therefore, the civil suit was filed on
22.11.2013 against the legal heirs of Hajarisingh.
03. The defendants filed the written statement disputing the execution of
the agreement to sale. They also challenged the authority of Hajarisingh by
submitting that he had no legal right to execute the agreement to sale of the
property in question. It is also pleaded in the written statement that the stamp
paper was sold by the Stamp Vendor but there is no mention of name of
Hajarisingh and the stamp papers bear different numbers, therefore, by
compiling different documents, one alleged agreement to sale was prepared. In
such type of defendant, it has become incumbent upon the plaintiff to produce
the original copy of the agreement to sale in evidence. The plaintiff filed an
application u/s. 65 of the Evidence Act that the original agreement to sale has
been misplaced, therefore, he may be permitted to exhibit the agreement to sale
dated 26.11.2010 as a secondary evidence.
04. The prayer was opposed by the defendants and the said application
was rejected by the trial Court on the ground that in the agreement to sale, the
value of the property is mentioned as Rs.18,22,500/- but it is executed on a
stamp paper of Rs.100/-, therefore, the document which is not duly stamped
cannot be taken into evidence by virtue of Section 35 of the Indian Stamps Act.
Even otherwise, the pleading in the application filed u/s. 65 of the Evidence Act
are insuffient. No date, time, place, etc. has been mentioned about missing of
the original document. Even in the plaint it is not pleaded that the original of
agreement to sale is in possession of the plaintiff and at that time, the second
copy was also prepared. Learned trial Court has placed reliance over the
judgment of the apex Court in the case of Hariom Agrawal V/s.
Prakashchandra Malviya : (2007) 8 SCC 514 in which it has been held that a
photocopy of the document cannot be accepted as secondary evidence.
Therefore, the document filed by the plaintiff is neither a certified copy of a
public document or second copy prepared through mechanical process at the
time of preparation of first copy, which cannot be accepted or taken as a
secondary evidence. Therefore, the trial Court has not committed any error of
law while rejecting the application filed u/s. 65 of the Evidence Act. No case for
interference is made out.
05. Accordingly, this petition fails and is hereby dismissed in limine.
(VIVEK RUSIA)
JUDGE
Alok
Date: 2023.12.13 15:23:43 +05'30'
