Sampat Kumar Babel vs Nathu And Anr
2022 Latest Caselaw 3837 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

              S.B. Civil Writ Petition No. 9139/2018

Sampat Kumar Babel S/o Shri Dheeraj Kumar Babel, R/o
Bhanwarbari Bijay Nagar District Ajmer Raj.
                                                                   ----Petitioner
                                   Versus
1.     Nathu S/o Late Shri Madhu Ji, R/o Near Power House
       Sindhi Colony Bijaynagar Tehsil Masuda. District Ajmer
       Raj.
2.     Nagar Palika Bijaynagar              District Ajmer         Through Its
       Executive Officer, Bijaynagar. Dist. Ajmer Raj.
                                                                ----Respondents

For Petitioner(s) : Mr.Jai Prakash Gupta For Respondent(s) : Mr.Devansh Sharma for Mr.Anuroop Singhi

HON'BLE MR. JUSTICE ASHOK KUMAR GAUR

Order

16/05/2022

This writ petition has been filed by the petitioner-defendant,

challenging the order dated 12th January, 2018, whereby the

application filed by the respondent-plaintiff under Section 65 of

the Indian Evidence Act, 1872 (for short the 'Act of 1872')

for leading secondary evidence has been allowed.

Learned counsel for the petitioner submitted that the Court

below, while allowing the application to lead secondary evidence

under Section 65 of the Act of 1872, has not taken into account

the existence of document, for which, permission has been

granted to lead secondary evidence.

Learned counsel submitted that first of all, existence of the

document is required to be proved by the non-petitioner-plaintiff

(2 of 5) [CW-9139/2018]

and in absence of such evidence about existence of the document,

the Court below could not have permitted the photocopy to be

produced in secondary evidence.

Learned counsel for the petitioner submitted that initially, the

suit was filed by the plaintiff against the respondent - Municipal

Authorities but later on, the petitioner was added as a defendant

in the suit.

Learned counsel submitted that the petitioner has also filed

written statement.

Learned counsel submitted that from the year 2011 to 2017,

no evidence was led by the plaintiff and after a gap of six years,

application under Section 65 of the Act of 1872 has been allowed.

Learned counsel for the petitioner further submitted that the

document, which is sought to be produced by the non-petitioner-

plaintiff, is said to be issued somewhere in the year 1941 and

authenticity of the said document was first required to be proved.

Learned counsel further submitted that if the document is

allowed to be taken on record as secondary evidence, serious

prejudice will be caused to the petitioner and as such, the Court

below has committed illegality in allowing the application.

Learned counsel for the petitioner places reliance on the

judgment in the case of Hukmi Chand Mosum Vs. Kushal

Chand Duggad reported in AIR 2017 (Raj.) 215.

On the strength of the said judgment, learned counsel for

the petitioner submitted that the applicant, who files the

application for leading evidence as per Section 65 of the Act of

1872, is required to narrate complete facts in the application itself

about existence of the document and further, possession of such

document is also required to be proved by such person.

(3 of 5) [CW-9139/2018]

Learned counsel submitted that the Court below in the

present case has also not seen averments in the application and

only by mentioning that the document was of 1941, the Court

below has allowed the application.

Per contra, learned counsel for the respondent(s) has

submitted that the order passed by the Court below does not

require any interference by this Court under Article 227 of the

Constitution of India.

Learned counsel for the respondent(s) also places reliance on

the judgment passed by the Coordinate Bench of this Court in the

case of Devi Lal Meena & Ors. Vs. Ram Lal Meena reported in

2018(1) RLW 347 (Raj.) as well as on the case of Dulichand

Vs. Additional District Judge No.6, Jaipur City, Jaipur & Anr.

(SB Civil Writ Petition No.10326/2010). On the strength of

the said judgments, learned counsel submitted that photocopy of

a document can be taken on record as secondary evidence.

Learned counsel further submitted that the plaintiff, while

filing the suit, has mentioned about existence of such document

and he had also annexed photocopy of the said document along

with the plaint.

Learned counsel for the respondent further submitted that

the petitioner, in the present case, has not filed any counter claim

and as such, he has no claim or right to raise such issue of

secondary evidence before the Court.

This Court, after going through the order passed by the

Court below, finds that the application, filed by the respondent(s),

has been allowed on account of issuance of a document/Patta on

06.09.1941 and further, mention of said document is also there in

the suit filed by the plaintiff in 2010.

(4 of 5) [CW-9139/2018]

Considering the facts aforesaid, this Court finds that the

Court below has not committed any error while allowing the

application filed by the plaintiff.

This Court further finds that the petitioner, later on, was

added as a party defendant in the suit and he has not filed any

counter claim and if the respondent-plaintiff wants to produce

secondary evidence on record, the petitioner cannot be allowed to

raise objection about it.

The submission of learned counsel for the petitioner that this

Court in the case of Hukmi Chand Mosum (supra) has not

permitted filing of secondary evidence under Section 65 of the Act

of 1872, suffice it to say by this Court that there was no averment

in the application about alleged document, sought to be produced

by way of secondary evidence.

The judgment relied by learned counsel for the petitioner in

the case of Hukmi Chand Mosum (supra) is of no assistance to

him.

This Court in the case of Seth Ram Sukhdas Ji Kedia Fund

Vs. M/s. Mridul Industries & Ors. (SB Civil Writ Petition

No.24893/2018) decided on 08.03.2022 has considered the

scope of Section 65 of the Act of 1872. Relevant part of the said

judgment is quoted hereunder for ready reference :

"This Court further finds that the provision contained in Section 63 of the Evidence Act, provides for and defines the 'Secondary Evidence' and as per sub- Section (2) of Section 63, if the copies of any document are made from the original by mechanical process which in themselves insure the accuracy of the copy, such kind of secondary evidence is permissible in the eyes of law.

(5 of 5) [CW-9139/2018]

This Court further finds that Section 65 of the Evidence Act in clause (c) provides that Secondary Evidence may be given with respect to contents of a document, if the original has been destroyed or lost or when the party offering evidence of its contents cannot, for any other reason not arising from its own default or neglect, produce it in reasonable time.

This Court, considering the facts which have come on record, as per pleadings of the party, finds that if the suit which was filed by the plaintiff-petitioner in 2000, had mentioned about the photostat copies of the receipts and as such, the right occasion arose to the petitioner to move application to lead secondary evidence, after framing of the issue.

This Court, considering the facts of the present case, finds that the opportunity of leading secondary evidence was rightly availed by the petitioner, by moving an application under Section 65 of the Evidence Act."

In view of the above, this Court finds that no error has been

committed by the Court below while passing the order impugned.

Accordingly, the writ petition is dismissed being devoid of

merit.

At this juncture, learned counsel for the petitioner submitted

that the petitioner may be granted liberty to raise objection about

the document, which has been permitted to be brought on record

by way of secondary evidence, this Court finds that the right,

available to any party to raise objection about the document, can

always be taken in accordance with law.

(ASHOK KUMAR GAUR),J Preeti Asopa /31

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