Rajasthan High Court - Jodhpur

Arjunchandra Mehta vs Kailash Chandra ... on 4 September, 2023

Bench: Nupur Bhati

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 814/2020

Arjunchandra Mehta S/o Late Shri Dhanpat Chandra Mehta, Aged About 67 Years, By Caste Oswal, Resident Of Plot No. 30, Hanwant Vihar, Opp. K.N. College, Raikabagh, Jodhpur.

----Petitioner Versus Kailash Chandra S/o Late Shri Kedar Chandra Ji Bhandari, By Caste Oswal Bhandari, Resident Of Moti Chowk, Jodhpur.

                                                                         ----Respondent


For Petitioner(s)              :    Mr. Manoj Bhandari, Sr. Adv. with
                                    Mr. Aniket Tater
For Respondent(s)              :    Mr. Vinay Jain



                HON'BLE DR. JUSTICE NUPUR BHATI

                                         Order

04/09/2023

1. With the joint consent of learned counsel for the parties, the

matter is heard finally today itself.

2. The present writ petition has been filed under Article 226 and

227 of the Constitution of India with the following prayers:-

"i) By appropriate writ, order or direction, the impugned order passed by the Additional Civil Judge and Metropolitan Magistrate No.10, Jodhpur Metropolitan, Jodhpur dated 22.10.2019 (Annex.5) may kindly be declared illegal and be quashed and set aside.

ii) By appropriate writ, order or direction the application filed by the plaintiff under Section 65 of the Indian Evidence Act for treating the agreement to sale dated 30.09.1991 and patta issued in the year 1995 as admissible in evidence may kindly be dismissed with costs.

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iii) Any other appropriate order or direction which this Hon'ble Court may deem fit just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner.

iv) Costs of the writ petition may kindly be awarded to the petitioner.

3. Brief facts of the case are that the respondent-plaintiff

preferred a suit for permanent injunction seeking direction that

the construction raised by the petitioner was in violation of the

condition mentioned in sale deed dated 30.09.1991 which was

registered on 31.12.1991 and the same may be demolished and

the disputed strip of land measuring 3x62 i.e. 3 feet x62 feet be

left vacant.

4. A reply was submitted by the petitioner to the said civil suit

and issues were framed by the learned trial Court on 16.12.2016.

During pendency of the said suit, an application was moved by the

respondent-plaintiff under Section 65 of the Indian Evidence Act,

1872 (hereinafter referred as The Act of 1872) for permitting the

plaintiff to treat the certified copy of the sale deed dated

30.09.1991 as admissible evidence. The petitioner did not file

reply to the said application and the application came to be

decided by the Court below vide order dated 22.10.2019 whereby

the application was allowed. Being aggrieved of the impugned

order dated 22.10.2019, the present writ petition has been filed.

5. Learned senior counsel appearing for the petitioner submits

that the finding given by the court below while deciding the

application filed under Section 65 of the Act of 1872 permitting

the plaintiff-respondent to place certified photocopy of the sale

deed dated 30.09.1991 as admissible evidence is not sustainable

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as Section 65 read with Section 66 of the Act of 1872 clearly

reflects that unless the party fulfills the procedure as prescribed

under Section 66 of the Act of 1872, the application cannot be

allowed to treat the said document as admissible evidence under

Section 65 of the Act of 1872.

6. Learned senior counsel also submits that in the said

application it has not been mentioned that who was having the

possession of the original sale/Patta and a bare perusal of Section

65 reveals that secondary evidence relating to the documents can

be given, if the original appears to be in possession or power of

the person against whom the document is sought to be proved of

any person who is out of reach of said document. Learned senior

counsel further submits that there was no such application filed by

plaintiff-respondent to treat the document under Section 77 of The

Act of 1872. He also submits that in any case, even the certified

copy of the patta is not a public document and therefore, the

procedure under Section 66 is mandatory and has not been

adhered and in the instant case, the procedure has not been

followed and thus, the finding given by the learned Court below

while permitting the document as admissible in secondary

evidence is absolutely perverse and required to be quashed and

set aside.

7. Learned senior counsel further submits that neither the

agreement to sale deed dated 30.09.1991 is a public document as

the same is not a registered document and nor it can be treated

as admissible in evidence as the sale deed is a private document

executed between two parties and therefore, it would not falls

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within the scope and ambit of public document. He further submits

that the registry made under Section 57 of the Registration Act of

a private document can fall within the ambit of public record,

therefore, the certified copy of this public record or entries can be

treated to a public document but not the same it cannot be

treated as public document. Learned counsel for the petitioner

places reliance upon the judgment dated 20.11.2017 passed by a

Co-ordinate Bench of this Court in the case of Jagdish Giri Vs.

Smt. Dhanni Devi & Anr., and the relevant portion is reproduced

as under:-

"Mr. Sushil Bishoni, learned counsel appearing for the petitioner assailing the order dated 03.02.2017 contended that the registered sale deed and the power of attorney both cannot be said to be public documents which as a matter of fact, are private documents, executed between the two parties. He submitted that these documents do not fall within the scope and ambit of public documents. He added that the entries made in the register as contemplated under Section 57 of the Registration Act may fall within the ambit of public record and thus certified copies of such entries may be treated to be a public document, but not the sale deed and the power of attorney, even after registration.

Mr. Bishoni, in this regard relied upon a judgment of this Court rendered in S.B. Civil Writ Petition No.836/2008 titled as "Nathmal Vs. Urban Improvement Trust, Bikaner & Ors.", reported in AIR 2009 (Raj) 60 and contended that in view of the law laid down by this Court, the documents in question are not public documents and secondary evidence of such documents is not permissible, despite the same being certified copies.

Mr. Girish Joshi, learned counsel appearing for the respondents has not been able to point out any judgment

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contrary to the judgment in case of Nathmal (supra) and submitted that instead of contesting the matter here, his clients stand advised to take appropriate proceedings, requiring production of original documents by petitioner as envisaged under the provisions of Evidence Act and the Code of Civil Procedure, 1998.

He conceded the position of law and submitted that the matter be disposed of in terms of the judgment aforesaid.

In view of above, the writ petition is allowed, the order dated 03.02.2017 to the extent of permitting the secondary evidence in respect of two documents out of the documents tendered by the plaintiffs; namely registered sale deed dated 31.01.2014 and general power of attorney dated 04.03.2014 is quashed and set-aside.

Needless to observe that the plaintiffs shall be permitted to take appropriate proceedings in accordance with law.

As the plaintiff No.1 is reported to be in twilight of her life, being 80 year's of age; it would be in the fitness of things, to direct the Trial Court to decide the suit expeditiously. Hence, Trial Court is directed to decide the suit as early as possible, preferably within a period of eighteen months from today."

8. Per contra, learned counsel for the respondent submits that a

bare perusal of Section 74 and 74(2) of the Act of 1872 clearly

reflects that the document in question falls under the definition of

public documents which is reproduced as under:-

74. Public documents.--The following documents are public documents:-

(1) Documents forming the acts, or records of the acts -

(i) of the sovereign authority,

(ii) of official bodies and tribunals, and

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(iii) of public officers, legislative, judicial and executive, (2) Public records kept [in any State] of private documents.

9. Learned counsel for the respondent further submits that the

learned Court below has rightly allowed the application filed by

the respondent-plaintiff while treating the sale deed and the

patta as admissible in secondary evidence as these documents

are duly maintained by the State and thus, fall under the

category of public documents as laid down in Section 74 and

Section 74(2) of the Indian Evidence Act, 1872.

10. Heard learned counsel for the parties and perused the

material available on record.

11. This Court finds that there is no iota of doubt that under

Section 74 of the Act of 1872, the public records which are kept

by the State as private documents are considered to be public

documents and thus the submission of learned senior counsel

that the sale deed and patta is a private document which has

been executed between two private person is not sustainable as

though, it is a private document but is is kept as a public record

by the State and the same falls under Section 74 of the Act of

1872 as a public document. This Court also finds that in the

judgment of Smt. Manita Tak & Ors. Vs. Ram Gopal Tanwar & Ors.

passed by a Co-ordinate Bench of this Court while dealing with

the same issue, in the present writ petition that whether the sale

deed would fall in definition of public document under Section 74

of the Act of 1872 had allowed the writ petition while holding

that:-

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"5. This Court after hearing the learned counsel for the parties, is of the opinion that the per incuriam law permits a Court to follow an earlier judgment of the same bench strength if it has not been considered in the subsequent judgment and admittedly, the judgment cited by the counsel for the petitioners is of 4.3.2016 and the subsequent judgment cited by counsel for respondents is dated 20.11.2017. Moreover, apart from maintaining judicial discipline and following the per incuriam law, this Court also finds that Section 74 of the Evidence Act clearly defines public documents and Section 74(2) clearly stipulated that private documents which are kept as public records by the State shall form public documents. This Court also finds that all the public documents defined under Section 74 are admissible as secondary evidence under Section 65(e) of the Evidence Act which is a clear position on a bare reading of law. The learned Court below has moved on a premise that the certified copy of registered sale deed is not a public document on the basis of Hon'ble Madhya Pradesh High Court's judgment in Smt. Rekha Rana & Ors. vs. Smt. Ratnashree Jain reported in AIR 2006 M.P. 107 which is dealt with in the judgment which this Court has followed i.e. Gopinath Educational & Welfare Society (supra) and reproduced as aforesaid.

Thus, the impugned order dated 22.2.2017 passed by the learned Senior Civil Judge and Additional Chief Judicial Magistrate No.3, Bikaner is quashed and set aside and the learned Court below is directed to take the certified copy of the registered sale deed submitted by the petitioners as secondary evidence in terms of Section 65(e) of the Evidence Act.

The present writ petition is allowed in the above terms."

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12. Thus, in view of the fact that Section 74 of the Act of 1872

clearly lays down that private documents which are kept as public

records by the State shall form public documents and all public

documents defined under Section 74 of the Act of 1872 are

admissible as secondary evidence under Section 65(e) of the Act

of 1872 and therefore, the document i.e. sale deed dated

30.09.1991 and patta also form public documents and are

admissible in secondary evidence are rightly permitted to be taken

on record by the Court below as secondary evidence.