Madhya Pradesh High Court
Smt. Leelabai Through Mukhtyar Shubham vs Sanjay Malviya on 31 October, 2025
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE ALOK AWASTHI
MISC. PETITION No. 35 of 2024
SMT. LEELABAI THROUGH MUKHTYAR SHUBHAM
Versus
SANJAY MALVIYA AND OTHERS
Appearance:
Shri Krishna Sharma - Advocate for the petitioner.
Shri B.I. Mehta - Advocate alongwith Ms. Shivani Soni -
Advocate for the respondents.
Heard on : 02.09.2025
Pronounced on : 31.10.2025
ORDER
The petitioner has preferred this petition under Article 227 of the
Constitution of India being disgruntled by the impugned order dated
27.10.2023 passed by the First District Judge, District- Dewas in Civil Suit
No. 206-A/2022, whereby petitioner/plaintiff's request for taking photocopy
of a sale agreement as secondary evidence, has been rejected.
2. Brief facts of the case are that the petitioner has filed a civil suit
for declaration and permanent injunction regarding his ownership and
possession of Village Padaliya Tehsil and District Dewas Survey No. 279
area 2.24 hectare, Survey No. 280 area 0.50 hectare total area 2.74 hectare
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land, in which as the main cause of action, it was known that by giving false
and untrue information to the petitioner/plaintiff, a registered sale deed dated
05.06.2021 was executed by respondent No. 1/defendant No. 1, seeking
other relief including declaring the sale deed void and ineffective. In the said
suit, an application was filed on behalf of the petitioner/plaintiff under
Section 65 of the Indian Evidence Act, 1872 (in short "IEA, 1872") {Section
50 of Bhartiya Shakshya Adhiniyam, 2023 (In short "BSA, 2023")} before
the trial Court, which was registered as I.A. No. 03/2023. The learned trial
Court has rejected the said application after considering all the facts.
3. Counsel for the petitioner contended that the learned trial Court
has failed to consider the true aspect of requirement of sale agreement under
Section 65-B of the IEA, 1872 (Section 63 of BSA, 2023), as an agreement
was prepared & signed by both parties, but the above agreement was no
executed by respondent No. 1. The requirement of Section 65-B of the IEA,
1872 (Section 63 of BSA, 2023) is not necessary, if the original article has
been produced. Only for the purpose of secondary evidence production of
such agreement is mandatory. Hence, he prays that the impugned order be
set aside and the objection of respondent No1. be rejected and the agreement
to sale, which is in the possession of respondent No. 1 may kindly be
permitted to exhibit and admit in the evidence. Counsel for the petitioner has
placed reliance upon the judgment of Hon'ble Supreme Court in the case of
Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and others
reported in (2020) 7 SCC 1.
4. Per contra, learned counsel appearing for respondent supported
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the impugned order passed by the trial Court. He also submitted that the
photocopy of agreement to sale will not fall within parameters of Section 65
of IEA, 1872 (Section 50 of BSA, 2023). Therefore, the present petition is
liable to be rejected.
5. Both the parties heard at length and perused the impugned order
and other documents with due care.
6. As per provisions of Sections of IEA, 1872 (BSA, 2023) and as per
the settled legal position, photocopy of a document is inadmissible in
evidence. For the purpose of convenience and taking note of the submission
made by learned counsel for the petitioners, Section 65 of IEA, 1872
(Section 60 of BSA, 2023) is required to be seen:-
"65. Cases in which secondary evidence
relating to documents 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
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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] to be
given in evidence;
(g) when the originals consists 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. In cases (a), (c) and (d),
any secondary evidence of the contents of the
document is admissible. In case (b), the
written admission is admissible. In case (e) or
(f), a certified copy of the document, but no
other kind of secondary evidence, is
admissible. In case
(g), evidence may be 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."
7. As per Section 63 of IEA, 1872 (Section 58 of BSA, 2023),
photocopy of a document can be adduced in secondary evidence and same
may be treated as secondary evidence, if it has been stated by petitioner that
photocopy has been created by the mechanical processes which in
themselves insure the accuracy of the copy, and copies compared with such
copies; or compared with the original. Section 63 is quoted as under :-
"63. Secondary evidence.
Secondary evidence means and includes -
(1) [certified copies given under the
provisions hereinafter contained;]
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(2) copies made from the original by the
mechanical processes which in themselves
insure the accuracy of the copy, and copies
compared with such copies;
(3) copies made from or compared with the
original;
(4) counterparts of documents as against the
parties who did not execute them;
(5) oral accounts of the contents of a
document given by some person who has
himself seen it.
Illustrations
(a) A photograph of an original is secondary
evidence of its contents though the two have
not been compared, if it is proved that the
thing photographed was the original.
(b) A copy compared with a copy of a letter
made by a copying machine is secondary
evidence of the contents of the letter, if it is
shown that the copy made by the copying
machine was made from the original.
(c) A copy transcribed from a copy, but
afterwards compared with the original, is
secondary evidence; but the copy not so
compared is not secondary evidence of the
original although the copy from which it was
transcribed was compared with the original.
(d) Neither an oral account of a copy
compared with the original nor an oral
account of a photograph or a machine copy
of the original, is secondary evidence of the
original."
8. In the case at hand, there was no source of information about
possession of the original one by which the original agreement of sale which
is sought to be produced in evidence and to lead as secondary evidence.
9. In this regard, the law rendered in the case of Arjun Panditrao
Khotkar Vs. Kailash Kushanrao Gorantyal and others reported in (2020) 7
SCC 1, wherein Hon'ble Apex Court has made the following observation, as
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under :-
"We may reiterate, therefore, that the
certificate required under Section 65B(4) is a
condition precedent to the admissibility of
evidence by way of electronic record, as
correctly held in Anvar P.V. (supra), and
incorrectly "clarified" in Shafhi Mohammad
(supra). Oral evidence in the place of such
certificate cannot possibly suffice as Section
65B(4) is a mandatory requirement of the
law........"
10. Further, this Court in a case of Sunil Kumar Sahu Vs. Smt.
Awadhrani passed in W.P. No.8224/2010, relying upon a decision of the
Supreme Court in case of Hariom Agrawal Vs. Prakash Chand Malviya
reported in (2007) 8 SCC 514 has observed as under :-
"Now, the questions arises whether the
document which was insufficiently stamped,
a photo-copy of such document can be
admitted as secondary evidence. This
question has been considered by Apex Court
in Hariom Agrawal (supra) wherein the Apex
Court considering the question held that:
"10. It is clear from the decisions of this
Court and a plain reading of Sections 33, 35
and 2(14) of the Act that an instrument which
is not duly stamped can be impounded and
when the required fee and penalty has been
paid for such instrument it can be taken in
evidence under Section 35 of the Stamp Act.
Sections 33 or 35 are not concerned with any
copy of the instrument and party can only be
allowed to rely on the document which is an
instrument within the meaning of Section
2(14). There is no scope for the inclusion of
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the document for the purposes of the Stamp
Act. There is no scope for the inclusion of the
copy of the document for the purposes of the
Stamp Act. Law is now no doubt well settled
that copy of the instrument cannot be
validated by impounding and this cannot be
admitted as secondary evidence under the
Stamp Act, 1899."
In view of the aforesaid, the Apex Court
has settled the law that the copy of the
instrument which was on insufficient stamp
cannot be admitted as secondary evidence
under Section 65 of the Indian Evidence Act.
So the photo-copy of Annexure P-4 was not
admissible in the secondary evidence as its
original was not adequately stamped....."
11. In the above judgment, the documents sought to be admitted as
secondary evidence cannot be permitted because their original was not
adequately accounted for.
12. In view of aforesaid enunciation of law and the facts involved in
the case, this Court is also of the opinion that the original agreement of sale
which is sought to be produced in evidence and to lead secondary evidence is
rightly denied by the Court below because there was no source of
information about possession of the original one. The only contention of the
petitioner with respect to the possession of the original agreement of sale, is
with the respondent No. 1.
13. Therefore, on the basis of foregoing analysis, this Court is of the
considered opinion that the trial Court has not committed any error in
rejecting the petitioner's request for procuring the photocopy of agreement to
sale. Hence, the impugned order passed by the trial Court is based upon the
cogent reasons and no reason for interference in the impugned order is called
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for.
14. Accordingly present petition being devoid of merit deserves to
be and is hereby dismissed.
(ALOK AWASTHI)
JUDGE
Vindesh
