Rajasthan High Court
Manish Mahajan Son Of Shri Hari ... vs Devi Shankar Son Of Mohanlal on 5 April, 2022
Bench: Mahendar Kumar Goyal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 3845/2022
Manish Mahajan Son Of Shri Hari Prasad, Aged About 39 Years,
Resident Of Hospital Road, Baran, Rajasthan.
----Plaintiff/Petitioner
Versus
1. Devi Shankar Son Of Mohanlal
2. Susheela Wife Of Mohanlal
3. Radheyshyam Suman Son Of Jagnath
4. Chandabai Wife Of Badrilal Suman
All Are Resident Of:- Dhulai Ka Mohalla, Baran, District-
Baran, Rajasthan.
5. Mohammad Abdul Haq Son Of Aamir Mohammad,
Resident Of:- Mangrol Darwarza, Nearby Gudave Ki Majid,
Baran, District- Baran (Raj.)
6. Irshad Ali Son Of Abdul Salam, Resident Of:- Gopal
Colony, Baran, District- Baran(Raj.)
----Defendants/Respondents
For Petitioner(s) : Mr. Nitesh Rawat
For Respondent(s) :
HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL
Order
05/04/2022
This writ petition under Article 227 of the Constitution of
India has been filed against the order dated 04.08.2021 passed by
the learned Additional District Judge No.1, Baran, District Baran
whereby, an application filed by the petitioner-plaintiff under
Section 65 of the Evidence Act, 1872 (for brevity, 'the Act of
1872') has been dismissed.
The facts in brief are that in a suit filed for specific
performance of the agreement and permanent injunction, the
(2 of 3) [CW-3845/2022]
petitioner filed an application under Section 65 of the Act of 1872
for tendering a photocopy of the photocopy of the agreement to
sell dated 22.07.2011 in evidence. The aforesaid application has
been dismissed by the learned trial Court vide its order dated
04.08.2021, impugned herein.
Assailing the order, learned counsel for the petitioner
submitted that photocopy of a photocopy of the original document
was admissible in evidence. He, in support of his submission,
relies upon a judgment of Hon'ble Apex Court of India in case of
M. Chandra vs. M. Thangamuthu and Anr.: (2010) 9 SCC
712. He, therefore, prays that the order impugned dated
04.08.2021 be quashed and set aside and he may be permitted to
lead secondary evidence.
Heard. Considered.
Learned trial Court has dismissed the application filed by the
petitioner assigning cogent reasons. A categorical finding has been
recorded by the learned trial Court that document in question
appears to be a copy of the photocopy without any endorsement
that the photocopy was prepared from the original agreement or
that it was compared with the original copy. Relying the provisions
of Section 63 of the Act of 1872, it was held that such copy is
inadmissible in evidence as secondary evidence.
Section 63(3) of the Act of 1872 provides that copies made
from or compared with the original are admissible as secondary
evidence. Indisputably, the document in question does not satisfy
the aforesaid requirement.
(3 of 3) [CW-3845/2022]
The judgment in case of M. Chandra (supra) is of no help to
the petitioner. Therein also, it was specifically observed in para 47
as under:
"...............................The secondary evidence must
be authenticated by foundational evidence that the
alleged copy is in fact a true copy of the
original...................."
As already held, the document in question is not a true copy
of the original. In its order dated 04.08.2021, the learned trial
Court has also held that it could not be established by the plaintiff
that original of the agreement dated 22.07.2011 was in existence.
The Hon'ble Apex Court has, in case of Harjas Rai Makhija
(Dead) Through Legal Representatives vs. Pushparani Jain
and Anr.: (2017) 2 SCC 797 wherein the Hon'ble High Court of
Madhya Pradesh declined to admit a photocopy of another
photocopy as secondary evidence, held that such evidence cannot
be considered as secondary evidence.
In the facts and circumstances of the case and in the
backdrop of statutory provisions contained in the Act of 1872, this
Court is satisfied that the order impugned dated 04.08.2021 has
been passed by the learned trial Court in exercise of judicious
discretion based on cogent material on record which does not
warrant any interference of this Court under its supervisory
jurisdiction vide Article 227 of the Constitution of India.
Resultantly, this writ petition is dismissed being devoid of
merit.
(MAHENDAR KUMAR GOYAL),J
MADAN/147
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