Madhya Pradesh High Court
Karmchari Bhavishy Nidhi Organization ... vs Smt. Shalini on 25 February, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
NEUTRAL CITATION NO. 2025:MPHC-GWL:4033
1 MP-5290-2022
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 25th OF FEBRUARY, 2025
MISC. PETITION No. 5290 of 2022
KARMCHARI BHAVISHY NIDHI ORGANIZATION KSHETRIY
KARYALAY SANJAY COMPLEX JAYENDRA GANJ GWALIOR
Versus
SMT. SHALINI AND OTHERS
Appearance:
Mr. Raj Kumar Goyal - Advocate for the petitioner.
Mr. Sudama Prasad Chaturvedi - Advocate for the respondent [R-6].
ORDER
Present petition under Article 227 of Constitution of India is directed
against the order dated 01.10.2022 passed by IX Additional District Judge,
Gwalior in Civil Suit No. 5-A/2012, whereby, application under Order 13
Rule 10 of CPC filed seeking production of record of the learned trial Court
in ST No. 4 of 2005 which now is a part of Criminal Appeal No.2688 of
2008 and is pending before main seat of High Court at Jabalpur was rejected
holding that though the said record appears to be relevant for disposal of the
suit, but since the appeal of which the record from a part is pending, the
petitioner can obtain certified copies of those documents and produce them
in its evidence.
Learned counsel for the petitioner while referring to the order passed
by this Court in W.P. No. 1837 of 2015 vide order dated 25.07.2019
(Avinash Bihari Mishra Vs. Smt. Vimla Devi and Ors.) had argued that since
NEUTRAL CITATION NO. 2025:MPHC-GWL:4033
2 MP-5290-2022
the major part of the documents which are required by the petitioner are not
public documents, even if, the certified copies of those documents are
obtained, for the purpose of its admissibility of formal proof, the original
record would be required, which can be called through the Court only.
It was further argued that for formal proof of the certified copies of the
record as obtained by the petitioner, the original record is required, therefore
rejection of the application under Order 13 Rule 10 of CPC is perverse as
provision of sub rule 2 of Order 13 Rule 10 provides that the Court can send
for papers on record if the original documents are necessary for the purpose
of justice and as without the original, the certified copies could not be proved
by the petitioner, the application should have been allowed on the ground
mentioned in rejecting the application that since it forms part of the pending
appeal before the main seat at Jabalpur it cannot be summoned which is
wholly illegal.
On the other hand, learned counsel for the respondents have supported
the impugned order and submitted that no illegality has been committed by
the learned trial Court in rejecting the application and directing the petitioner
to produce certified copy of the documents which are required.
Heard learned counsel for the parties and perused the record.
The High Court of Patna in the case of Gulab Chand and Others Vs.
Sheo Karan Lall Seth and others reported in AIR 1964 Patna 45 has held as
under:-
"11. Witness No. 2 for defendant No. 6 was a pleader who
deposed that he had filed a mortgage suit on behalf of the two
brothers Ramnarain Lal and Baiju Lal. On reading the certified
NEUTRAL CITATION NO. 2025:MPHC-GWL:4033
3 MP-5290-2022
copy he said in examination-in-chief that the contents were the
same as in the original plaint which was drafted under the
instructions of the plaintiffs (the two brothers). Thus the certified
copy came to be marked as Ext. E-2. In cross-examination,
however, the witness" said that he could not remember the
contents of the plaint and he had no independent recollection of
that. The nature of that evidence could not have proved the
contents of the plaint. Apart from that, the witness did not attempt
to prove anything beyond the contents of the plaint.
Secondary evidence is given to prove the existence, condition or
contents of a document and nothing more beyond that. If a
document is alleged to have been signed by any person, the
signature must be proved to be in the handwriting of that
person, Section 67 makes that clear also. The whole, case of
defendant No. 6, as accepted by the Court below on the question
of separation of Baiju Lal, was that the two brothers had filed the
plaint making a statement therein about their separation.
Mere statement in the plaint is not enough until the subscription
to that statement is proved to have been made by both or one of
the brothers. A plaint is signed and verified by the plaintiff. That is
the way in which the plaintiff subscribes to the statements made in
the plaint. In that mortgage suit, both the brothers" Ramnarain and
Baiju were the plaintiffs. The signature of neither of them has
been proved by the witness No. 2 for defendant No. 6 or any other
witness in the case and that demolishes the very basis of proof of
separation in this case. Contents of a document will not prove the
execution of it.
In that view, neither Ramnarain nor Baiju Lal has been proved
to have made any statement in the plaint to the effect that they
were separate. The making of such statement or the filing of the
plaint containing such statement cannot thus be used in the present
case as any proof of the intention to sever the joint status of the
family. Neither separation nor intention to separate has been
proved. Baiju Lal cannot be said to have died in a state of
severance from the joint family. As such, defendant No. 6 cannot
be entitled to 8 annas or any share in the proper ties of the joint
family. On the death of Baiju Lal, an undivided member of a joint
family, other coparceners took the estate by survivorship, the
widow being entitled to only maintenance.
12. For the respondent [defendant No. 6) it was con-tended that
Ext. E-2, being a certified copy of a plaint, it would prove, without
any further evidence, the contents of the original plaint including
the signatures of the plaintiffs on that point. In other words, the
argument was that the plaint filed in a Court was a public
NEUTRAL CITATION NO. 2025:MPHC-GWL:4033
4 MP-5290-2022
document, a certified copy of which could be granted
under Section 76 of the Indian Evidence Act, and when so granted,
it will prove the contents of the original by the mere filing of it
under Section 77.
What are public documents are stated in Section 74 of the
Evidence Act: Documents forming the acts or records of the acts
of the sovereign authority, of official bodies and tribunals, and of
public officers, legislative, judicial and executive, of any part of
India or of the Commonwealth or of a foreign country have been
described as public documents. I cannot see how a plaint filed by a
private person in Court to institute a case against some others can
come within the descriptions of the documents given in that sub-
section. Sub-section (2) of Section 74 can in no way include a
plaint. The plaint is neither an act nor the record of an act of any
public officer. There can be no strength in the contention that
when the plaint is presented and the Court makes an order
admitting or registering it, the plaint becomes an act or the record
of an act of a public officer presiding over the Court. At the most,
it will become a part of the record maintained by the Court in that
case after the plaint is admitted and registered, but that itself will
not make it a public document. If it were, then anything filed in a
case in a court of law either petitions or pleadings, private
communications or documents which a party would file in a case
would become public documents for the simple reason that they
are on the record of a case in Court. The judgment and decree
passed in a case are undoubtedly the acts of the Court, and they
will be public documents on that account. Similarly, a petition of
compromise which is made a part of the decree forms a part of the
public document, but before its incorporation in the decree, it
remains a private document, though filed in Court, forming a part
of the case record.
13. Learned counsel for the respondent relied upon some cases
to support the view that a plaint or a written statement filed in a
case are public documents. The case of Mahomed Shahaboodeen
v. Wedgebarry, 10 Beng LR App. 31, was very much relied upon.
No doubt, in that case a certified copy of the plaint was admitted
on the ground that the plaint was a public document as it formed a
part of the record but a certified copy of a written statement which
was filed in the case was rejected. If a plaint could be a public
document, there is no reason why the written statement should not
come in that category; but the view taken in that case about the
plaint being a public document and, as such, provable by the
production of a certified copy did not find favour in any other
Court. Authors on evidence like Field and Woodroffe doubted the
NEUTRAL CITATION NO. 2025:MPHC-GWL:4033
5 MP-5290-2022
correctness of that view also in their commentaries.
A Division Bench of this Court in the case of Tarkeshwar,
Prasad v. Devendra Prasad, AIR 1926 Pat 180, rejected that view
and noted that the Original Side of the Calcutta High Court did not
accept the plaint and written statement to be public documents. In
that case, a certified copy of a plaint dated the 10th of March 1900
which purported to have been signed by one Ramrup for self and
for Ram Suraj Tewari, a minor, was tendered in evidence to prove
the age of Ram Suraj. The learned Judges definitely held that the
certified copy of the plaint should not have been admitted in
evidence as the plaint was not a public document and, as such, not
provable by a certified copy.
Learned counsel also referred to the case of Somanna v. Subba
Rao, AIR 1958 Andh Pra 200. That case need not detain us long
as that case dealt with the question whether an income-tax return
as well as a statement filed in support of it, were public documents
within the meaning of Section 74 of the Evidence. Act and
whether certified copies thereof would be admissible
under Section 65 (e) of the Act, in spite of the provisions
contained in Section 54 of the Income-tax Act by which a Court is
prohibited from requiring a public servant to produce any
document mentioned in that Section, or to give evidence in
support of that. An income-tax return is on a different footing and
cannot be equated with the plaint which a party chooses to file in a
Court. The returns are filed under the Income-tax Act under the
statutory obligations imposed by that Act.
In the case of Bhinka v. Charan Singh, AIR 1959 SC 960, a
certified copy of a Khatauni (record of rights) came for
consideration on the stand-point of its admissibility in evidence.
Record of rights cannot be doubted to be a public document and,
therefore, it can be proved by secondary evidence under Section
65 (e). But in that case, however, as the certified copy was not
issued in compliance with the provisions of law in that respect,
their Lordships of the Supreme Court held that the presumption of
genuineness arising from a certified copy of a public document
was available to the party which sought to rely upon that. I do not
find how this case could assist the respondent.
There were two other cases from which help was sought : Unide
Rajaha Raje Bommarauze Bahadur v. Pemmasamy Venkatadry
Naidoo, 7 Moo Ind App 128 (P C) was of the year 1858 before
the Indian Evidence Act came into force. A copy of Kaifiyanamah
which purported to have been addressed to the East India
Company by one of the defendants in that suit came to be judged
about its admissibility. The document was of the 19th July 1842.
NEUTRAL CITATION NO. 2025:MPHC-GWL:4033
6 MP-5290-2022
Objection against the document being taken in evidence was ruled
out by their Lordships of the Judicial Committee, but that was not
on the ground that the Kaifiyanamah was a public document or
that its copy, certified to be a true copy by the Collector, was
admissible under the principles now contained in Clause (e)
of Section 65 of the Indian Evidence Act. The learned Judge,
while dealing with that matter, observed that no strict rule could
be prescribed with regard to the admissibility of evidence in the
Courts in India in spite of the fact that the rules of evidence, as
acknowledged and carried out in the English Courts, were highly
valued by the Judicial Committee. Those rules were not applicable
with the same strictness in the Courts in East Indies at that time
where the practitioners and the Judges did not have the intimate
acquaintance with the principles which governed the reception of
evidence in the English Tribunals. It cannot be argued now that the
Indian Courts or the legal practitioners in India suffer from that
disability at the present time, long after the rules of evidence were
very carefully codified and put into practice by the Indian
Evidence Act since 1872.
The case of Naragunty Luchmedevama v. Vengama Naidu, 9
Moo Ind App 66 (PC), can be dismissed from our consideration on
the similar ground that the case was decided in 1861. From the
facts stated in that judgment, it appears that the plaintiffs in that
case produced a document which, if genuine and correct,
established beyond doubt that the plaintiffs and the appellant's
husband were members of the same family and the suit property
was ancestral. That document was a copy of the paper in the
custody of the Collector Chittoor who had received the original
sometime in 1802.
Objection was taken against that document on the ground that it
was only a copy in a loose paper of which the original had not
been produced; how the Collector cams in possession of that was
not satisfactorily accounted for and that there was no signature on
that copy. Their Lordships discussed the circumstances under
which that paper had been lodged with the Collector and were
fully satisfied by them. The paper purported to be a copy of the
returns made to the East India Company by the then Polligar
(zamindar) giving the particulars of the property which was in his
possession but was seized by the Company at the time of conquest.
The accuracy of the copy so produced and its genuineness were
accepted by the Judicial Committee beyond controversy; and in
that view, they held that it was a proper evidence for consideration.
Besides the fact that the admissibility of that document was judged
not with reference to any code on evidence which had not by that
NEUTRAL CITATION NO. 2025:MPHC-GWL:4033
7 MP-5290-2022
time come into force in this country, the Judicial Committee
accepted that document not as a public one nor as proved by the
certified copy. It was taken, if it can be said so, as a secondary
evidence of which the original could not be produced for
satisfactory reasons. All the cases thus relied upon by the
respondent do not support her contention that the plaint of which
Ext, E-2 is a certified copy was a public document and capable of
being proved by the production of a certified copy."
Apparently, the documents which have been sought includes certain
bank receipts, pay slips, records of EPF i.e. form No. 9 and form 13 and
claim forms etc. which are not public documents and for the purpose of its
admissibility and their formal proof, the original documents would be
required. In wake of the aforesaid circumstances, the learned trial Court
should have allowed the application and call for the record of ST No. 2 of
2005 which is kept in the record of Cr.A No. 2688/2008 pending at Principal
Seat, Jabalpur. Accordingly, the application filed under Order 13 Rule 10 of
CPC is hereby allowed and order dated 01.10.2022 passed by IX Additional
District Judge, is hereby set aside. The trial Court is directed to proceed
further in the matter in accordance with law.
With the aforesaid, present petition is hereby allowed and disposed of.
(MILIND RAMESH PHADKE)
JUDGE
(LJ*)
