1 HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE M.P.No.1[SECTION]4/2017 (Pravin Vs. Ghanshyam & Others) Indore, Dated: 23.03.2018 Shri [ENTITY], learned senior counsel with Shri [ENTITY], Advocate for the petitioner. Shri [ENTITY], learned counsel for the respondents.
The petitioner/plaintiff has filed the present petition being aggrieved by the order dated 12.07.2017 (Annexure P/7) by which the application under [SECTION] of the [ACT] has been rejected and also against the order dated 06.11.2017 by which application under [SECTION] of the [ACT] has been rejected.
The petitioner being a plaintiff filed suit for declaration and permanent injunction with regard to the land bearing Survey No.32/2 and 32/5 total area 1.704 hectares of Village Nisharpur, Tehsil Kukshi, District Dhar. The land was owned by one Lt.[ENTITY] who expired on 29.08.20[SECTION]. According to the petitioner, he had executed a Will dated 29.05.2003 in his favour and Lt. [ENTITY] had also adopted him. After the death of [ENTITY], the petitioner became owner and agreed to sale the said land to one [ENTITY] and [ENTITY] vide agreement to sell dated 04.09.20[SECTION]. The plaintiff is in possession of the land but the respondent No.1 tried to destroy his standing crops, therefore, the petitioner filed suit for permanent injunction and declaration. The defendant No.1 filed written statement denying the averments made in the plaint.
The plaintiff filed an application under [SECTION], [SECTION] and [SECTION] of the [ACT] that he gave a notice to the defendant but they denied the possession of the certain documents, therefore, he may be permitted to prove the Will, agreement to sale as a secondary evidence in the suit. The respondent denied the averments made in the application and thereafter, learned Trial Court vide order dated 12.07.2017 has rejected the application on the ground that the plaintiff has not filed any application in this plaint for production of the document by the defendant no.1.
Thereafter, the plaintiff filed application under [SECTION] of the [ACT] for calling [ENTITY] by way of summon to prove the Will for collateral purpose. Learned Trial court vide order dated 26.11.2017 has rejected the same. Hence, present petition before this Court.
I have heard Shri [ENTITY], learned senior counsel appearing on behalf of the petitioner and Shri [ENTITY], learned counsel for the respondents.
Initially the plaintiff has made averment that original copy of the Will and Agreement to Sale is in possession of the defendant No.1 and he has not produced the same before the Tehsildar in mutation proceedings. The plaintiff has not filed any application for production of these documents in the Civil Court as provided under [SECTION], [SECTION] and [SECTION], therefore, there is no denial by the defendant No.1 about possession of the Will and agreement to sale by way of affidavit as provided in Appendix "C", Form-5 .Therefore, the learned Trial Court vide impugned order dated 12.07.2017 has rightly rejected the application.
So far as the rejection of an application filed under [SECTION] and [SECTION] the [ACT] is concerned, the plaintiff is required to prove that the photocopies of the documents were made by copying machine from the original and compared with the originals as contemplated in [SECTION] of [ACT]. Thereafter, he was required to prove the conditions as enumerated under [SECTION] of the [ACT]. The Apex Court in case of [PRECEDENT] has considered the scope of [SECTION] and [SECTION] in case the admissibility of the secondary evidence. Relevant portion of the aforesaid judgment is reproduced below:
"[SECTION]. As a general rule, documents are proved by leading primary evidence. [SECTION] of the [ACT] provides that documents must be proved by the primary evidence except in cases mention in [SECTION] of the [ACT]. In the absence of primary evidence, documents can be proved by secondary evidence as contemplated under [SECTION] of the Act which reads as under: -
"Secondary evidence means and includes (1) certified copies given under the provisions hereinafter contained;
(2) Copies made from the original by mechanical processes which in themselves ensure 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 documents given by some person who has himself seen it.
Illustration:
(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 he 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 machine copy of the original, is secondary evidence of the original."
[SECTION]. [SECTION] of the Act deals with the circumstances under which secondary evidence relating to documents may be given to prove the existence, condition or contents of the documents. For better appreciation [SECTION] of the Act is quoted herein below:-
"[SECTION]. 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], 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 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 public document within the meaning of [SECTION];
(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 40[India] to be given in evidence ;
(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in court and the fact to be proved it 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, 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."
15. The pre-conditions for leading secondary evidence are that such original documents could not be produced by the party relied upon such documents in spite of best efforts, unable to produce the same which is beyond their control. The party sought to produce secondary evidence must establish for the non-production of primary evidence. Unless, it is established that the original documents is lost or destroyed or is being deliberately withheld by the party in respect of that document sought to be used, secondary evidence in respect of that document cannot accepted. "
Initially, the plaintiff case was that the documents are in possession of [ENTITY]/defendant No.1. When his application under [SECTION] of the [ACT] was rejected, then he filed an application making assertion that the said documents are now in possession of [ENTITY], therefore, he filed application for calling him in the witness box. This second application is nothing but an after thought and to delay the Court proceedings, therefore, learned Trial Court has rightly rejected the applications filed by the petitioner.
This Court in the case of [ENTITY] s/o [ENTITY] and another reported in [PRECEDENT] has specifically considered in detail whether the photocopy can be accepted as secondary evidence. In another case of [PRECEDENT] passed in [CASE NUMBER] decided on 16.08.2012 this High Court has considered the scope of [SECTION] of the [ACT] in detail and held that the photocopy is not admissible as secondary evidence. Para- 11,12,[SECTION] 7 [SECTION] of the said judgment is reproduced below:
11. Learned counsel for petitioner/defendant rightly submitted that secondary evidence would include categories mentioned in Clauses (1) to (5) to [SECTION].
Learned counsel further rightly submitted that if conditions embodied in [SECTION] of the [ACT] exist, secondary evidence relating to document can be given. In support of (6) [CASE NUMBER] his forceful submissions, learned counsel has placed reliance on two decisions of Supreme Court [ENTITY] (supra) and Smt. [ENTITY] (supra) and also of learned Single Bench of Rajasthan High Court Smt. [ENTITY] (supra). But, to me, even then in the facts and circumstances of the present case the photocopy of the document of receipt cannot be admitted in secondary evidence. On bare perusal of the application under [SECTION] of the [ACT] which has been rejected by the impugned order it is found that although it has been mentioned that under the false pretext the plaintiff and her husband obtained the original receipt from petitioner/defendant, but, nowhere it has been so stated in the application that the photocopy was made from the original and it was compared with original. The name of the person, who had obtained the photocopy by mechanical process has also not been mentioned in the application and further who compared the same with original his name is also not mentioned nor any affidavit in that regard has been filed.
12. So far as the applicability of [SECTION] [ACT] placed reliance by the learned counsel for petitioner is concerned, according to me, it can be said that by some mechanical process a photocopy of original receipt was obtained, but, there cannot be any surety of its correctness and accuracy in absence of supporting material on record. Again in this regard there is no averment in the application that the photocopy which has been obtained by mechanical (7) [CASE NUMBER] process was never tempered and it ensures its accuracy. Even if accurate photocopy is obtained by a mechanical process, it is a matter of common parlance that after inserting some words on a document which is already a photocopy and by interpolating the same, another photocopy of the said interpolated photocopy may be obtained and thus the accuracy of photocopy is always surrounded by dark clouds of doubt. In the present case since there is no averment in the application under [SECTION] that photocopy was compared with the original and it is an accurate photocopy of the original and further by not filing any affidavit of person who obtained the said photocopy is on record, it is difficult to hold the hallmark and authenticity and accuracy of the photocopy.
[SECTION]. The decision of [ENTITY] (supra) placed reliance by the learned counsel for petitioner is not subject to context since it does not relate to admissibility of a photocopy of the document to be admitted in secondary evidence. Similarly another decision of Smt. [ENTITY] (supra) is also not applicable because the photocopy was not compared with the original and therefore photocopy was not admitted as secondary evidence in that case (see para 7 of the said decision). According to me, not only the satisfaction of Clause (a) to [SECTION] is required, but simultaneously it is also required that the photocopy was compared with the original in terms of [SECTION] of the [ACT].
[SECTION]. The Supreme Court in [PRECEDENT] while dealing with the photocopy of licence of a driver expressed the view as under :-
3. Learned counsel for the appellant submitted that the point regarding validity of the driver's licence was raised by the appellant before the Motor Accidents Claims Tribunal and the Tribunal in accepting photocopy of a document purporting to be the driver's licence and recording a finding that the driver had a valid licence, has committed a grave error of law. He also submitted that the High Court has not dealt with the said contentions of the appellant and without giving any reason has dismissed the appeal. The Tribunal and also the High Court have failed to appreciate that production of a photocopy was not sufficient to prove that the driver had a valid licence when the fact was challenged by the appellant and genuineness of the photocopy was not admitted by it. Thus, the Apex Court has held that photocopy was not sufficient to prove that driver had a valid licence. By following the aforesaid decision of Supreme Court, Shri Justice [ENTITY], J (as His Lordship then was) in [PRECEDENT] has held that when a photocopy without any reasonable source has been filed, it is not permissible as secondary evidence. Yet there is another decision of this Court in [PRECEDENT] decided on 31.08.2010 wherein it has been held that photocopy of a document is not admissible as secondary evidence under [SECTION] of the [ACT].
In the case of [PRECEDENT] the Apex Court has held that ordinary copy of the sale deed cannot be considered as secondary evidence. Para-25 of the said judgment is reproduced below:
25. The High Court said, and in our opinion very rightly that Ex.3 could not be regarded as secondary evidence.
[SECTION] of the [ACT] mentions five kinds of secondary evidence. Clauses (1),(2) and (3) refer to copies of documents, clause (4) refers to counter parts of documents and clause (5) refers to oral accounts of the contents of documents. Correctness of certified copies referred to in clause (1) is presumed under [SECTION], but that of other copies must be proved by proper evidence. A certified copy of a registered sale deed may be produced as secondary evidence in the absence of the original. But in the present case Ex.3 is not a certified copy. It is just an ordinary copy. There is also no evidence regarding contents of the original sale deed. Ex.3 cannot, therefore, be considered as secondary evidence. The appellate Court has a right and duty to exclude such evidence.
In the case of [PRECEDENT] the Apex Court has held in para-7,8 & 9 as under:
"7. Secondary evidence, as a general rule is admissible only in the absence of primary evidence. If the original itself is found to be inadmissible through failure of the party, who files it to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contents.
8. Essentially, secondary evidence is an evidence which may be given in the absence of that better evidence which law requires to be given first, when a proper explanation of its absence is given. The definition in [SECTION] is exhaustive as the Section declares that secondary evidence "means and includes" and then follow the five kinds of secondary evidence.
9. The rule which is the most universal, namely that the best evidence the nature of the case will admit shall be produced, decides this objection that rule only means that, so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it. [SECTION] deals with the proof of the contents of the documents tendered in evidence. In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. Under [SECTION], documents are to be provided by primary evidence. [SECTION], however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said Section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the Section. In Ashok Dulichand v. Madahavlal Dube and Another [1975(4) SCC [SECTION]4], it was inter alia held as follows:
"After hearing the learned counsel for the parties, we are of the opinion that the order of the High Court in this respect calls for no interference. According to [SECTION] of [ACT], Secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in 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 of any person legally bound to produce it, and when, after the notice mentioned in [SECTION] such person does not produce it. Clauses (b) to (g) of [SECTION] specify some other contingencies wherein secondary evidence relating to a document may be given, but we are not concerned with those clauses as it is the common case of the parties that the present case is not covered by those clauses. In order to bring his case within the purview of [SECTION], the appellant filed applications on July 4, 1973, before respondent No. 1 was examined as a witness, praying that the said respondent be ordered to produce the original manuscript of which, according to the appellant, he had filed Photostat copy. Prayer was also made by the appellant that in case respondent no. 1 denied that the said manuscript had been written by him, the photostat copy might be got examined from a handwriting expert. The appellant also filed affidavit in support of his applications. It was however, nowhere stated in the affidavit that the original document of which the Photostat copy had been filed by the appellant was in the possession of Respondent No. 1.
There was also no other material on the record to indicate the original document was in the possession of respondent no.1. The appellant further failed to explain as to what were the circumstances under which the Photostat copy was prepared and who was in possession of the original document at the time its photograph was taken. Respondent No. 1 in his affidavit denied being in possession appeared to the High Court to be not above suspicion. In view of all the circumstances, the High Court to be not above suspicion. In view of all the circumstances, the High Court came to the conclusion that no foundation had been laid by the appellant for leading secondary evidence in the shape of the Photostat copy. We find no infirmity in the above order of the High Court as might justify interference by this Court."
In the case of [PRECEDENT] this Court has held as under:
"12. According to me the photocopy is neither a primary nor secondary evidence and in this regard decision of this Court [PRECEDENT]. [PRECEDENT] may be seen. Apart from this even if it is stretched to the extent to bring the photocopy of will Ex.P/1 within the sphere of secondary evidence,the plaintiff was required to satisfy the ingredients to [SECTION] of the [ACT] which speaks about the secondary evidence. The plaintiff was further required to examine the person who took out the photocopy of the original. This is very much essential because it is a matter of common knowledge that by putting another writing written on a separate paper if that paper is kept upon the original document and photocopy is taken out, the said photo copy cannot be said to be a true photocopy of the original document."
The photocopy is neither a primary evidence nor secondary because the party is required to prove when and where the photocopy was taken and it is the same and exact copy of the original, therefore, in view of the above law trial Court has not committed any error while rejecting the application under [SECTION] of the [ACT].
In the present case in absence of such pleadings, the Trial Court has rightly dismissed the application filed under [SECTION] of the [ACT]. Hence, no interference is called for.
Even otherwise, the scope of interference in exercise of jurisdiction under [SECTION] of [ACT] is limited. The Supreme court in the matter of [PRECEDENT] has held that High court in exercise of its power of superintendence cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. The High court can exercise this power when there has been a patent perversity in the orders of tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
Petition is accordingly dismissed.
([ENTITY]) Judge jasleen