Madhya Pradesh High Court
Subhash Chandra vs Dr.Prashant Mohan on 15 February, 2024
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 15 th OF FEBRUARY, 2024
WRIT PETITION No. 6060 of 2010
BETWEEN:-
SUBHASH CHANDRA S/O AGYARAM PUNJABI, AGED
ABOUT 65 YEARS, OCCUPATION: R/O PROCESSION
ROAD,ASHOK NAGAR DISTT.ASHOKNAGAR
.....PETITIONER
AND
DR.PRASHANT MOHAN S/O SHYAM MOHAN DWIVEDI,
AGED ABOUT 26 YEARS, OCCUPATION:
PHYSICIAN(MBBS) R/O GANDHI PARK,NAZIR
BHAWAN,ASHOKNAGAR
.....RESPONDENTS
Th is petition coming on for hearing this day, th e court passed the
following:
ORDER
The present petition under Article 227 of the Constitution of India has
been filed against the order dated 24.09.2010 (Annexure P/1) passed by Civil
Judge, Class-I, Ashok Nagar in civil suit No.15-A/2009, whereby an
application preferred by the respondent/plaintiff under Section 65 of the
Evidence Act has been allowed and the documents have been taken on record
as secondary evidence.
2. The short facts of the case are that the respondent/plaintiff has filed
suit for eviction from the shop and for realization of the rent against the
petitioner. The respondent had filed an application under Section 65 of the
evidence Act alongwith copies of the documents and had submitted the original
documents are attached in civil case No.57-A/2009 and the appeal against the
said civil suit is pending before the High Court and without calling of the record
of the said case, the documents cannot be exhibited and therefore, requested to
allow the application and treat the copies as secondary evidence.
3. The petitioner/defendant filed reply and requested that the file of civil
suit No.57-A/2009 can be called under the provisions of Order 13 Rule 10 of
CPC and the provisions of the Section 65 of the Evidence Act is not applicable
in the present matter and therefore, the application deserved to be rejected.
4. Learned trial Court allowed the application of the respondent under
Section 65 of the Evidence Act inspite of the fact that the documents cannot be
allowed as secondary evidence on the ground that some time may be consumed
for calling the original documents and as the respondent/plaintiff themselves
have admitted this fact that the documents are available in another Civil Suit
No.57-A/2009 and the record of the suit which had been called was attached
with first appeal pending before High Court but instead of calling the said
record wrongly allowed the said application under Section 65 of the Evidence
Act, thus, aggrieved by the aforesaid order, the present petition has been filed.
5. None for the parties.
6. From perusal of the contents of the petition and grounds raised
therein, it appears to this Court that the impugned order suffers from patent
illegality. As per Section 65 of the Indian Evidence Act secondary evidence may
be given in all the exigencies/conditions enumerated therein. For reference
Section 65 is quoted herein below:-
"65. Cases in which secondary evidence relating to
document may be given.
Secondary evidence may be given of the existence, condition
or contents of a document in the following cases :
(a) When the original is shown or appears to be in the
possession or power of the person against whom the
document is sought to be proved, or of any person out of
reach of, or not subject to, the process of the Court, or of any
person legally bound to produce it, and when, after the
notice mentioned in section 66, such person does not produce
it;
(b)When the existence, condition or contents of the original
have been proved to be admitted in writing by the person
against whom it is proved or by his representative in
interest;
(c)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;
(d)When the original is of such a nature as not to be easily
movable;
(e)When the original is a public document within the
meaning of section 74;
(f)[ When the original is a document of which a certified
copy is permitted by this Act, or by any other law in force in
[India] [[[Cf. the Bankers'Books Evidence Act, 1891 (18 of
1891), Section 4.]], to be given in evidence;
(g)When the originals consist of numerous accounts or other
documents which cannot conveniently be examined in Court,
and the fact to be proved is the general result of the whole
collection."
7. As per the provisions contained under Section 65 of Indian Evidence
Act, the case referred to in clauses a, c & d secondary evidence of documents
are admissible. In case (b), the written admission is admissible and in case (e)
or (f), a certified copy of the document, but no other kind of secondary
evidence, is admissible and lastly, in case (g), evidence given as to the general
result of the documents by any person who has examined them, and who is
skilled in the examination of such documents, would be admissible as evidence.
8. The eventuality which has been discussed and held by the learned trial
Court is not covered under any of the provisions of sub sections of Section 65
and even in the judgment cited by the learned trial Court, this Court had in
specific terms laid down that only on the ground that since it would take time to
call the original, secondary evidence cannot be accepted.
9. The learned trial Court holding contrary to the aforesaid had allowed
the said application. The aforesaid reasoning and the conclusions drawn by the
learned trial Court are, therefore, not justified and accordingly the same are
hereby set aside. As a result, order dated 24.09.2010 is hereby quashed.
10. Interim relief granted on 20.10.2010 passed by this Court is hereby
vacated and the trial Court is directed to conclude the trial as expeditiously as
possible preferably within a period of six months from today.
11. In view of above, the present petition is disposed of.
Let this order be forwarded to the trial Court for information and
compliance.
(MILIND RAMESH PHADKE)
JUDGE
neetu
