Madhya Pradesh High Court
Smt. Baniyani Bai vs Smt. Sunita on 2 January, 2023
Author: Maninder S. Bhatti
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 2 nd OF JANUARY, 2023
MISC. PETITION No. 2982 of 2021
BETWEEN:-
1. SMT. BANIYANI BAI W/O LATE NIRBHAY SINGH,
AGED ABOUT 60 YEARS, GRAM GAMBHIR POST
SOMGAON TEHSIL HARSOOD DISTT. KHANDWA
(MADHYA PRADESH)
2. VIJAY S/O LATE NIRBHAY SINGH, AGED ABOUT 35
YEAR S , OCCUPATION: NOT MENTION GRAM
GAMBHIR, POST SOMGAON, TEH. HARSOOD,
DIST. KHANDWA (MADHYA PRADESH)
3. AJAY S/O LATE SHRI NIRBHAY SINGH, AGED
ABOUT 32 YEARS, OCCUPATION: NOT MENTION
GRAM GAMBHIR, POST SOMGAON, TEH.
HARSOOD, DIST. KHANDWA (MADHYA PRADESH)
4. MAHENDRA S/O LATE SHRI NIRBHAY SINGH,
AGED ABOUT 20 YEARS, OCCUPATION: NOT
MENTION GRAM GAMBHIR, POST SOMGAON,
TEH. HARSOOD, DIST. KHANDWA (MADHYA
PRADESH)
5. JITENDRA S/O LATE SHRI NIRBHAY SINGH, AGED
ABOUT 27 YEARS, OCCUPATION: NOT MENTION
GRAM GAMBHIR, POST SOMGAON, TEH.
HARSOOD, DIST. KHANDWA (MADHYA PRADESH)
.....PETITIONER
(BY SHRI UTTAM MAHESHWARI - ADVOCATE)
AND
1. SMT. SUNITA W/O SHRI SURENDRA SHARMA,
AGED ABOUT 42 YEARS, GRAM LAKSHORAMALA
TEHSIL HARSOOD DISTT. KHANDWA AND
Signature Not Verified CURRENTLY R/O GANDHI CHOWKI KHIDKIYA
TEHSIL KHIDKIYA DISTT. HARDA (MADHYA
SAN
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PRADESH)
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2
2. SURENDRA S/O SHRI BRAJBHUSHAN SHRMA,
AGED ABOUT 47 YEARS, OCCUPATION: NOT
MENTION GRAM LAKSHORAMALA TEH.
HARSOOD, DISTT. KHANDWA, AND CURRENTLY
R/O GANDHI CHOWKI KHIDHIYA, TEHSIL
KHIDKIYA, DISTT. HARDA (MADHYA PRADESH)
3. THE STATE OF M.P. THROUGH COLLECTOR
DISTT. KHANDWA (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI ANUVAD SHRIVASTAVA - ADVOCATE FOR RESPONDENTS )
This petition coming on for admission this day, th e court passed the
following:
ORDER
The petitioner has field this petition assailing the order dated 25.08.2021
in RCSA/6/2019 (Annexure-P/8) by which, an application moved by the present
petitioners/plaintiffs under Section 65(C) of the Indian Evidence Act has been
declined.
The facts as elaborated in the petition reflect that the present petitioners
have filed a suit before the trial Court praying inter alia that sale-deed dated
29.06.2015 be declared as null and void.
It is averred in the plaint that initially the defendants executed an
agreement on 13.04.2015 and without paying the amount of consideration to the
plaintiffs, as they were illiterate, the defendants got the sale-deed executed while
keeping the plaintiffs in dark. Thus, the said plaint was filed with a prayer that
the sale-deed dated 29.06.2015 be declared as nullity and further prayer
regarding declaration and permanent injunction was also made.
Learned counsel for the petitioners/plaintiffs contends that in order to
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substantiate the plea regarding execution of agreement dated 13.04.2015, the
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plaintiffs were required to be permitted to adduce secondary evidence inasmuch
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as, the original of an agreement dated 13.04.2015 was in possession of the
defendants and the specific averments were made in paragraph no.7 of the
plaint. Thus, submits that the trial Court in view of the paragraph no.7 of the
plaint ought to have allowed the application filed by the present plaintiffs. The
counsel submits that in view of the law laid down by the Apex Court in the case
of Rakesh Mohindra vs. Anita Beri and Ors. (Civil Appeal No.13361/2015),
the impugned order deserves to be quashed as, the plaintiffs satisfied the
requirement of Section 65 of the Evidence Act.
Per contra, learned counsel for the respondents submits that the trial
Court has rightly declined to entertain the application filed by the plaintiffs under
Section 65(C) of the Evidence Act. It is contended by the counsel for the
respondents that the plaintiffs failed to fulfill the requirement of Section 66 of
the Evidence Act and accordingly, the application filed under Section 65(C) of
the Evidence Act was not maintainable. Learned counsel for the respondents
has placed reliance on the judgement passed by Calcutta High Court in the case
o f Nityananda Roy vs. Rashbehari (AIR 1953 Calcutta 456) and the
judgment passed by the Rajasthan High Court in the case of Kanhiya Lal vs.
Jamna Lal [AIR (37) 1950 Rajastahn 47].
Heard rival submissions.
In the present case the application filed under Section 65(C) of the
Evidence Act has been declined by the Court below. In order to adduce
secondary evidence, there is a condition precedent which is stipulated in
Section 66 of the Evidence Act, which is being reproduced herein:-
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evidence of the contents of the documents referred to in
section 65, clause (a), shall not be given unless the party
proposing to give such secondary evidence has previously
given to the party in whose possession or power the
document is, 1[or to his attorney or pleader,] such notice
to produce it as is prescribed by law; and if no notice is
prescribed by law, then such notice as the Court
considers reasonable under the circumstances of the case:
Secondary evidence of the contents of the documents
referred to in section 65, clause (a), shall not be given
unless the party proposing to give such secondary
evidence has previously given to the party in whose
possession or power the document is, 1[or to his attorney
or pleader,] such notice to produce it as is prescribed by
law; and if no notice is prescribed by law, then such
notice as the Court considers reasonable under the
circumstances of the case\:" Provided that such notice
shall not be required in order to render secondary
evidence admissible in any of the following cases, or in
any other case in which the Court thinks fit to dispense
with it.
(1) when the document to be proved is itself a
notice;
(2) when, from the nature of the case, the adverse party
must know that he will be required to produce it;
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(3) when it appears or is proved that the adverse party has
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obtained possession of the original by fraud or force;
(4) when the adverse party or his agent has the original in
Court;
(5) when the adverse party or his agent has admitted the
loss of the document;
(6) when the person in possession of the document is out
of reach of, or not subject to, the process of the Court.
A perusal of the Section 66 of the Evidence Act makes it abundantly
clear that the secondary evidence of the contents of the documents referred in
Section 65 of the Evidence Act cannot be given unless the party proposing to
give such secondary evidence has previously given a notice to the party in
whose possession or power the documents is available. In the present case,
undisputedly the plaintiffs have failed to establish that the mandatory provisions
laid down in Section 66 of the Evidence Act were adhered to by the plaintiffs
and any notice was given to opposite party
A perusal of paragraph nos.2 and 4 of the application reveals that the
plaintiffs undisputedly wanted to adduce secondary evidence in respect of the
contents of agreement dated 13.04.2015, which has been specifically disputed
by the defendants in paragraph no.5 of their written statement.
Thus, the trial Court while dealing with the petitioners application and
also taking into consideration the provisions of Section 66 of the Evidence Act,
has rightly rejected the application (IA No.2/2021) filed by the present
petitioners under Section 65(C) of the Evidence Act.
Accordingly, this Court does not find any merit in the petition and the
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same stands dismissed.
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Date: 2023.01.06 12:48:20 IST
(MANINDER S. BHATTI)
JUDGE
mn
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