tiilfil f- R^WU %3g@I^I^I^E- '^ • ? •'',.y'f. IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION FC1 N0. ^-?^9 /2006 FS.B.1 PETITIONER PLAINTIFF RESPONDENTS DEFENDANTS ;^^- :- / Kumari Lal Munni Nirmam daughterof Shri Kasturam, aged 44 years, by caste- Unraw, resident of village Bilha, Dodkibhantha, Tahsil Bilha, Police station Bilha, District Bilaspur [C.G.]. VERSUS /1] Ashok Kumar son of Parasram, aged about 50 years, by caste- Panjabi. /2] Smt. Rajrani wife of Ashok Kumar, aged about 40 years. Both resident of village Bilha, TahsU Bilha, District Bilaspur WRIT PETITION UNDER ARTICLE 227 OF TH c, CONSTITUTION OF INDIA ^ \0 ^ _. ^.^•-c = :?.°ft'?^ a -_—^K HIGH COURT OF C'HHATTISGARH AT BILASPUR WMT PETITION (QNo.6^4of2W6. Petitioner Kumari Lal Muaffli Nirmm Versus Respondaite Ashok Kwnar aad moAer Postfororderon /^Man;1^2007 Sd/- Satish K. ^nihotri Judp r ^^^^ s HIGH CQURT OF CHHATTI8GARH AT BILASPUR 8.B. : HON'BLE MR. SATISH K.AGNmOTRI.J. WRIT PETITION (O Ne. 6394 <rf20( . Petitioner Kumari Lal Munni Nmnan Versus Respondeiits Ashok Kumw and imotfier Preseat: Shri M.K.Bhaduri, Advo<ate for the prtitioner. Shri B.D.Guro, Advocate for the respondente. ORDER (Passed on /^^fMm-cfa, 2007) 1. By this petition, filed under Article 227 oftiie Constitutioa ofIndia, the petitioner ohallenges the legality and validity of onter dated 7.11^006 (AnneMue P/5) passed by tfie 8& Civil Jad^ Class II, Bitepur in Civil Suit No. 44-A/2006 whereuader Ae application filed by the petitioner (petitioner-plaiDtilBE) uader sectioa 65 of the Evidence Act, was rejected. 2. The facte in nutshell are that tiie petiti<aer-plauitiff filed a civii suit for permanentinjunction against the respondents-defendante to the effect that the disputed property be not alienated to any third party and ao step be taken for sale of the said disputed poperty. The plaiatifif farther filed aa application under seetion 65 of tfae Badia Evidence Act, 1870 that tiie respondente be directed to produce ~"s-seSiSf^SSSS!5S£i^:'vl'' original aotarc;ed sde document which aflegedly was in possession of the respondeats. The learaed Civil Judge Class H, vide order dated 7.11.2006 (impugned herein) ngected the application OB Ifae groundtiiatthe respondentsdenied possession ofanysueh document and photo-copy ofthe said document date4 accepted as secondaiy evidence. caiuiot be 3. The leamed counsel appeming fw the petitioner submits that the leamed Civil Judge Class U has not exercised ite jurisdiction properiy by deelining to awept Ihe said document for collateral purposes. 4. Shri B.D.Guru, leamal counsel appearing for the respondeats, per contra submitted tfaat Ifae said photo copy of the doeiimeat dated 10.08.2002 which was sought to be accepted, was aeithCT meatkmed in the plaint nor there was aay avennent to tiiat effect in the plaiat The snbmission oflfae petitioner to theeffect tiiat Ae originat is in possession ofthe respondents have not been proved by fee petitioaer which is the basic reqBirement ofsection 65 oftiie Evidence Act. 5. Heard the learaed counsel appearing for tiie parties ssd perased pleadings and Ae documents appended tfaereto. AdnAtedly, the petitioaer has failed to prove the easteace of aiy doeameat in possession ofthe respondents as dlegcd by him. Tlie photocoiy of the notarized document is not as per requirement ia law to describe the sameassaleagreemCTit.TheHigh CourtofOrissaatCuttaekia Chaadra Shekhar Pari and ano&er Vs. Ahalya Devi aad otiiers, AIR 1974 Orissa 199 (V 61 C 64)heldthatiftiieexisteBce ofa documeat is proved aad Ae same couldnot be produced on aecountofdcatto of the defendan^ fte seeocdaiy document of such evidene® is admissible m evidence. 6. In another decision, Ishwar Das Vs. Muralidhar Rai2 AIR 1992 Orissal70 hekiasunder "......... ..In decidiag the intefflti(»i of the parties as to the tirne ofpassing oftitie, the document untter whieh tiie properties were intended to be sold if uaamUgiKws, remsins the sole crita-ion. The faeftun of passiag of consideration may be disputed aad exhanecws evideace may be adfflissible for detenniniag thal issue, but A® tenns ofthe contractastotiietiffleofpasstngoftiflew)}I be proved fi-om thedQCumentaloa®ifthfiterms saeelwx aad unainbigirous. If fhe tenns are iadwisave aad ambiguous, 1faen only the Courts will take into coDsideration other extianeous ciroumstaflGes." 7. In the present case, there is no avennent thatAe ori^ialdeettment coutd not be produced on accoimt of Ae des& of Ifae owaer of fhe docwnent. Even otherwise, such docuaents sse prepsa'ed ia duplicste aad a copy oftfae same is retained by bo& ft®i»rties.'nie petitioner can prove the facts by other eyideflce dsoe Th»s,Kgecticui ofthe application for acceptiag a photoGopy ofthesaid document dated 10.08.2002 as secondary widettce isjustandpEoper. 8. It is well setded principle of law tfaat under Article 227 rf the Constitution of!n<Ma, Ifais Court hasjurisdiction ofjudicial review of Ihe order passed by the Court below, in the even^ there is manifest and apparent error on tfae face oflfae proceedings based <m tfte clew ignorance or utter disregard to Ihe previsions oflaw or there is grave feilure ofjustice or grave injwisttce has oceasioned tiiCTeby. Furfeer, Ihis Court can also entertwn the petition ia ite supervismy jurisdiction if tiiere is perversfty, irregttlarily or illegality ia the process ofdecision, not in Ifae decision itself. 9. Apptying Ae above settled priaciples of law to Ifae faete of tfae present case, it does not wairant to iaterfere witb flie dectston passed by ttieCourtbelow, lO.Thus, Ihispetitiofl is <fisnrissed. No order as to coste. Sd/- Satish K. Agnihotri Judge 1. AlR19740rBsal99(V61C64) 2. AK. 1992 Orissa 170 Amit jirz-ci.fet'-(.—^^ ~f~'G'~".^" "I~~.