{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO. 37 OF 2010 Shaikh Mahboob @ Quadeer s/o Shaikh Gafoor, Age-38 years, Occ-Mutawalli of Dargayh Shahnoor Shakkar Gutti (Rh) and Dargah Jalaluddin (Rh) & Labour R/o Indira Nagar, Baijipura, Aurangabad APPLICANT VERSUS 1. Kishor Beneficial Trust, DELETED Through its Trustee, Shekhar Champalal Desarda Anukrupa, 28, Venkatesh Nagar Opp-Jalna Road, Aurangabad 2. Shekhar Champalal Desarda, DELETED Age-Major, Occ-Business R/oAnukrupa, 28, Venkatesh Nagar Opp-Jalna Road, Aurangabad 3. The Municipal Corporation, Aurangabad, through its Commissioner, Aurangabad 4. The Maharashtra State Board of Wakf, Through its Chief Executive Officer, at Panchakki, Aurangabad RESPONDENTS ....... Mr. S.S.Kazi, Advocate for applicant Mr. Manjusha Deshpande, Advocate for respondent No.3 ....... {2} [CORAM : A.V.POTDAR, J.] DATE: 17th March 2010 ORAL JUDGMENT: 1. By this revision application, the applicant, who is plaintiff in suit No.227 of 2006 before the Wakf Board, at Aurangabad has challenged the order passed below Exhibit-71. The said application was moved by respondent No.3 with a request to allow secondary evidence in respect of an application and affidavit filed by the applicant-plaintiff before the respondent No.3. Accordingly, the said application came to be allowed and the application and affidavit are exhibited at Exhibit-90 and 91, respectively by the trial court. 2. Heard. Rule. Rule made returnable forthwith. By consent of the parties, heard finally at the stage of admission. 3. It appears that suit No.227/2006 came to be filed by the present applicant for perpetual injunction restraining present respondents No.1 and 2 from interfering with the peaceful possession of the plaintiff over the property bearing CTS No. 12240/34 situated at Baijupura, Indira Nagar, Aurangabad dedicated for Dargah Shanoor Shakkar Gutti Rh and Dargah Jalaluddin Rh. Description of the said property is given in para 1 of the plaint. So far as respondents No.1 and 2 are concerned, they {3} are deleted from this application. It also appears that initially civil revision application was moved before this Court by respondents No.1 and 2 challenging the order of injunction passed by the Tribunal. By order dated 14.07.2009 hearing of the suit was expedited and the parties were directed to maintain status quo. The trial court was directed to dispose of the suit on priority basis on or before 31.12.2009. The said time has already lapsed. 4. Admittedly, though evidence of the applicant is over in the said suit, yet when the turn of defendant No.3 came, an affidavit of examination in chief of one Sanjay Kombade, Junior Engineer, Town Planning Department, came to be filed. Evidence of defendant No.3 is at Exhibit-77. In the evidence copies of letter and affidavit dated 06.05.1997 were tendered and were given Exhibit No.90 and 91. It is admitted by the said witness that the said copies were prepared from zerox copies. It further appears that an application was moved at Exhibit-71 to allow to lead secondary evidence under the provisions of section 63 and 65 of the Indian Evidence Act. The said application came to be allowed on 05.02.2010. The cross examination of the witness was over on 18.02.2010 and the present civil revision application came to be moved on 17.02.2010. It is urged that whether the said documents allowed to be exhibited can be treated as secondary evidence and can be read in the evidence. On the face of it, it appears that the application was decided before the evidence i.e. Cross examination of witness for defendant No.2 was over. In the premise it requires to {4} consider as to whether the said documents can be treated as secondary evidence or not. Section 63 of the Indian Evidence Act is in respect of Secondary evidence, which reads thus - “63. Secondary Evidence - 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 insure 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 document given by some person who has himself seen it. Illustrations (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 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 the 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 photo graph or machine copy of the original, is secondary evidence of the original.” {5} 5. According to learned counsel for respondent No.3, the case of respondent No.3 covers u/s 63 (2) of the Evidence Act. In support of her contentions, learned counsel for respondent No.3 has placed reliance on the judgments reported in the matter of “Anil Balasaheb Murde V/s Adinath Trimbak Bodkhe” reported in 2007 (2) Mh.L.J. 406 and in the matter of “Sayad Jamalludin Mujawar V/s Khatunbi Abdul Gani” reported in 2000 (2) ALL MR 595. So far as the ruling given in both the above referred judgments is concerned the same is in respect of copy of the documents prepared with mechanical process from the original documents. Thus, the contents of application Exhibit-71 require to be considered in the light of the admissions given by the witness for respondent No.3 in his cross examination. The application Exhibit-71 is silent on the point as to zerox copies at Exhibit-90 and 91 were prepared from original documents with mechanical process when the affidavit as well as application was tendered and submitted by the plaintiff with the Municipal Corporation on 06.05.1997. On the contrary, it is the evidence of witness for respondent No.3 that these documents are zerox copies prepared from zerox copies. On admission in the cross examination, it is clear that these documents do not cover under the ambit of section 63 (2) of the Indian Evidence Act so also the same do not cover by the judgments relied on by the learned counsel for respondent No. 3. Thus, it is clear that as the documents Exhibit-90 and 91 are not prepared from the original documents and hence they do not {6} cover within the definition of section 63 (2). The said documents cannot be treated as secondary evidence under the provisions of the Indian Evidence Act. Apart from it, section 65 speaks that when the secondary evidence to be permitted as stand proved. So far as this aspect is concerned, it is for the trial court to decide whether it is accepted or no. However, certainly these documents do not cover under the ambit of secondary evidence as per the provisions of section 63 (2) of the Indian Evidence Act. In the premise, to produce these documents as secondary evidence are beyond the scope of the provisions of the Indian Evidence Act and thus, the learned trial court has committed an error in treating the said documents as secondary evidence. 6. In the result, the civil revision application succeeds. The order passed below Exhibit-71 in suit No.227 of 2006 before the Wakf Board, at Aurangabad is hereby quashed and set aside. 7. Rule is thus made absolute on the terms indicated above. [A.V.POTDAR, J.] drp/A10/cra37-10