Orissa High Court
Kamal Bibhar vs Smt. Asami Bag & Anr on 20 December, 2022
ORISSA HIGH COURT : C U T T A C K
W.P.(C) NO.13197 OF 2010
An application under Articles 226 & 227 of
the Constitution of India.
Kamal Bibhar : Petitioner
-Versus-
Smt. Asami Bag & anr. : Opposite Parties
For Petitioner : M/s.U.K.Samal, C.D.Sahoo,
S.P.Patra, M.R.Mohapatra
& S.Naik
For O.Ps. : None
JUDGMENT
CORAM :
JUSTICE BISWANATH RATH
Date of Hearing & Judgment : 20.12.2022
1. The Writ Petition involves a challenge to the rejection of an
Application under Section 66 of the Indian Evidence Act, 1872, vide
order dated 6.5.2010 involving T.S. No.6/2000 under Annexure-3.
2. Mr.Samal, learned counsel for the Petitioner taking this Court to
the background and pleading involving the case submits, there has been
execution of a sale deed between the Plaintiff and the third party involved
herein and Defendant No.2 filed an Application seeking production of
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Registered Sale Deed No.226 of 1991 by the third party. Copy of the
Application being served on the Plaintiff, there is no dispute that the
Plaintiff has come forward for filing objection, vide Annexure-2
declining to have executed any such Sale Deed. Mr.Samal, learned
counsel for the Petitioner taking this Court to the nature of Application
through Paragraph-6 of Annexure-1 submits, for the contingency in
Section 65 of the Indian Evidence Act, there was requirement for issuing
notice to one Ghana Kumbhar S/o.Kusiaru Kumbhar of Village-Tikrapara
to produce original Sale Deed. Taking this Court to the provision at
Section 65 of the Indian Evidence Act, learned counsel for the Petitioner
attempts to satisfy that once there is an Application under Section 66 of
the Indian Evidence Act, looking to the contingency in Section 65 of the
Indian Evidence Act, it is compulsory on the part of the trial court in
putting the Party likely to produce such document to notice and then
taking a decision. It is in the circumstance, taking this court to the manner
of disposal of the Application, vide Annexure-3, learned counsel for the
Petitioner contends, this Court should interfere with the impugned order
and direct the Civil Judge (Sr.Divn.), Titilagarh for having re-exercise on
the Application under Section 66 of the Indian Evidence Act and
disposing of the same strictly in terms of Section 65 of the Indian
Evidence Act.
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3. In spite of notice and appearance of a set of Counsel for the
contesting O.P.1, nobody is present in Court. The matter is decided
hearing the learned counsel for the Petitioner and also involving the
pleadings and documents on Board.
4. For the involvement of contingency through Section 65 of the
Indian Evidence Act, this Court finds, Section 65(a) of the Indian
Evidence Act reads as follows :-
"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;"
5. Reading through the above, this Court finds, for the nature of
Application involved herein required to be disposed of only after the
notice on application under Section 66 of the Indian Evidence Act is
served on such person. Coming back to the issue involved and the
disposal of Annexure-1, this Court finds, in deciding the Application
under Section 66 of the Indian Evidence Act, the trial court only involved
the Plaintiff and the Defendant and did not involve the Party required to
produce the document involved therein. In the circumstance, this Court
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finds, there is no compliance of the statutory requirement under Section
65 of the Indian Evidence Act in disposal of the Application under
Section 66 of the Indian Evidence Act.
6. As a consequence, this Court interfering with the impugned order
at Annexure-3 sets aside the same but however for re-disposal of the
Application required, this Court remits the matter to the Civil Judge
(Sr.Divn.), Titilagarh for re-adjudication involving the Application under
Section 66 of the Indian Evidence Act but strictly in accordance with the
provision at Section 65 of the Indian Evidence Act.
7. The Writ Petition succeeds. There is no order as to costs.
(Biswanath Rath)
Judge
Orissa High Court, Cuttack.
The 20th December, 2022/M.K.Rout, A.R.-cum-Sr.Secy.
