Priyanka Mishra vs Dr. Nishi Naryani
2023 Latest Caselaw 3031 MP

                                                         1
                          IN    THE      HIGH COURT OF MADHYA PRADESH
                                              AT JABALPUR
                                                   BEFORE
                                     HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                           ON THE 20 th OF FEBRUARY, 2023
                                           MISC. PETITION No. 2193 of 2018

                         BETWEEN:-
                         1.    PRIYANKA MISHRA D/O SHRI SUSHIL MISHRA,
                               AGED ABOUT 30 YEARS, R/O. 505, EDEN
                               APARTMENTS       PRAKATI        BUILDER
                               BAWADIYAKALA (MADHYA PRADESH)

                         2.    SUSHIL MISHRS S/O LATE BALKRISHNA MISHRA,
                               AGED ABOUT 60 YEARS, 505 EDEN APARTMENTS
                               PRAKATI BUILDER BAWADIYAKALA (MADHYA
                               PRADESH)

                                                                                   .....PETITIONERS
                         (BY SHRI MANTHAN SHARMA - ADVOCATE)

                         AND
                         1.    DR. NISHI NARYANI D/O LATE SHRI NANAKRAM,
                               AGED ABOUT 50 YEARS, R/O. 123, GOOD
                               SHEPHERD COLONY KOLAR ROAD (MADHYA
                               PRADESH)

                         2.    SMT LAJWANTI W/O LATE NANAKRAM, AGED
                               ABOUT 75 YEARS, 123 GOOD SHEPHERD COLONY
                               KOLAR ROAD (MADHYA PRADESH)

                         3.    THE COLLECTOR OF STAMP AND DISTRICT
                               REGISTRAR    SEHORE SEHORE (MADHYA
                               PRADESH)

                         4.    THE STATE OF MP THROUGH COLLECTOR
                               SEHORE (MADHYA PRADESH)

                                                                                  .....RESPONDENTS
                         (RESPONDENT NO.1 BY SHRI ARVIND KUMAR CHOUKSEY - ADVOCATE)
                         (STATE BY SHRI SHIV KUMAR SHRIVASTAVA - GOVERNMENT
                         ADVOCATE)

                               T h is petition coming on for orders this day, t h e cou rt passed the
Signature Not Verified
Signed by: AMIT JAIN
Signing time:
2/20/2023 7:53:33 PM
                                                               2
                         following:
                                                               ORDER

This Miscellaneous Petition under Article 227 of the Constitution of India is filed by the petitioners being aggrieved of order dated 15.12.2017 passed by learned Collector of Stamp and District Registrar, Sehore in Case No.83/B- 103/Section-33/2017-18 whereby photocopy of a document has been accepted for impounding.

Learned counsel for the petitioners after reading the order dated 18.8.2017 passed in Writ Petition No.2333/2017 (Priyanka Mishra & Another versus Dr.Nishi Naryani & Others) submits that impounding of photocopy of a document is not permissible. The law in this regard as held by

Hon'ble the Supreme Court in Hariom Agrawal versus Prakash Chand Malviya (2007) 8 SCC 514 is crystal clear.

Learned counsel for respondent No.1 and learned Government Advocate for the State support the impugned order.

After hearing learned counsel for the parties and going through the material available on record, it is evident that a Coordinate Bench of this Court vide order dated 18.8.2017 passed in Writ Petition No.2333/2017 (Priyanka Mishra & Another versus Dr.Nishi Naryani & Others) has observed as under:-

''After having heard learned counsel for both the parties, in the facts of the present case, the judgment of Hariom Agrawal versus Prakash Chandra Malviya (2007) 8 SCC 514 applies, however, in my considered onion, the Trial Court committed error to allow the application. In any case if the plaintiffs want to prove the said fact after impounding of the document, they may take recourse of law to Signature Not Verified Signed by: AMIT JAIN Signing time:

2/20/2023 7:53:33 PM

bring such document on record by filing application specifying the ingredients of Section 65 of the Indian Evidence Act, 1872." It is evident that the Coordinate Bench of this Court vide order dated 18.8.2017 passed in Writ Petition No.2333/2017 (Priyanka Mishra & Another versus Dr.Nishi Naryani & Others) has held that if the plaintiffs want to prove the said fact after impounding of the document, they may take recourse of law to bring such document on record by filing an application specifying the ingredients of Section 65 of the Indian Evidence Act, 1872. The Coordinate Bench did not upheld the argument raised by the petitioners therein that the photocopy could not have been taken on record and forwarded it to the competent authority for its impounding.

I n Hariom Agrawal versus Prakash Chand Malviya (supra), the ratio is that the photocopy of original instrument could neither be validated by impounding nor it could be admitted as secondary evidence under the Indian Stamp Act, 1899. Hence, the ratio is that the impounding will not validate the photocopy of original instrument and nor it can be admitted as secondary evidence under the Indian Stamp Act, 1899.

In view of such facts, mere factum of impounding, which is reflected from the impugned order, is not sufficient to quash the said order but it will be open to the petitioners before the Trial Court to prove that even after

impounding in absence of original document, the impounding will neither validate the document nor it can be admitted as secondary evidence under the Indian Stamp Act, 1899. Since this option is still available to the petitioners and the ratio of judgment of Hariom Agrawal versus Prakash Chand Malviya (s upra ) is not in regard to the impounding but in regard to the admissibility/validity and that issue being open can always be raised by the Signature Not Verified Signed by: AMIT JAIN Signing time:

2/20/2023 7:53:33 PM

petitioners before the Trial Court.

In above terms, this Miscellaneous Petition is disposed of. Let record received from the Court of the Collector of Stamp, Sehore as produced by Shri Shiv Kumar Shrivastava, learned Government Advocate for the State be returned back to him in original for onward transmission.

At this stage, Shri Manthan Sharma, learned counsel for the petitioners submits that even while impounding the document, no notice was issued against the present petitioners.

The aforesaid fact is disputed by Shri Shiv Kumar Shrivastava, learned Government Advocate for the State and he submits that the notice was issued vide order sheet dated 7.12.2017.

(VIVEK AGARWAL) JUDGE amit

Signature Not Verified Signed by: AMIT JAIN Signing time:

2/20/2023 7:53:33 PM