IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.8636 of 2011 Nabi Hassan Versus Gayetri Devi & Ors ---------------------------------- with Civil Writ Jurisdiction Case No.9656 of 2011 Nabi Hassan Versus Gayetri Devi & Ors ---------------------------------- O R D E R 26. 22.12.2011. 1. I have heard the learned counsel, Mr. Mahendra Prasad, on behalf of the petitioner and learned counsel, Mr. Pramod Singh, on behalf of the respondent in both the applications under Article 227 of the Constitution of India. 2. In C.W.J.C. No.8636 of 2011, the plaintiff- petitioner has prayed for setting aside the order dated 15.09.2006 passed by Sub Judge IIIrd Patna in title suit No.102 of 1984 whereby the learned Court below rejected the prayer of the plaintiff-petitioner to mark the certified copy of attested copy of affidavited Baibeyana dated 14.09.1982. The other C.W.J.C. No.9656 of 2011 has been filed by the plaintiff-petitioner challenging the order whereby the review application of the aforesaid order has been rejected. Therefore, the result of C.W.J.C. NO.9656 of 2011 is dependent on the result of C.W.J.C. No.8636 of 2011. 3. The plaintiff-petitioner filed tile suit No.102 of 1984 for a decree of specific performance of contract alleging that as per the terms of affidavited agreement for - 2 - sale it be held that the registered sale deeds executed in favour of defendant No.9 by respondent No.1 is void, illegal. According to the plaintiff, the defendant No.1, Sohrai Prasad had executed the said affidavited agreement. The defendants-respondents filed contesting written statement denying the allegation of execution of any such agreement. 4. The petitioners filed application on 07.07.2006 praying therein to mark the certified copy of attested copy of Baibeyana deed dated 14.09.1982 as exhibit on the ground that the original baibayana deed is not available. The respondents objected to the same on the ground that that the same is forged and fabricated document. 5. By the impugned order, the learned Court below rejected the application filed by the plaintiff and found that the certified copy of attested copy cannot be accepted in this case. 6. The learned counsel for the petitioner submitted that the documents is the basis of the plaintiff’s claim and, therefore, the learned Court below should have marked the document as exhibit because the same document has been marked exhibit in another suit. According to the learned counsel when the original has been lost, the certified copy of attested copy should have been taken as secondary evidence. 7. On the contrary, the learned counsel for the respondent submitted that unless the production of original - 3 - is accounted for, no secondary evidence can be permitted to be adduced. The certified copy sought to be produced is not of the original document but is alleged to be the certified copy of attested Baibeyana. Therefore, it cannot be marked as exhibit. The only case of the petitioner is that the original is not traceable and according to the defendant, the document is forged document. 8. Admittedly, the original alleged Baibeyana was not filed by the plaintiff. The original Baibeyana is the bases of the suit and the suit itself has been filed in the year 1984 without annexing the said Baibeyana with the plaint or subsequent to the filing of the suit also, the same was never filed. 9. In the case of H. Siddihique Vs. A. Ramalingum 2011 SCCR 368, the Apex Court has held that provisions of Section 65 of the Evidence Act, 1872 for permitting the parties to adduce secondary evidence, is subject to a large number of limitations. In a case where original documents are not produced at any time nor any factual foundation has been led for giving secondary evidence, it is not permissible for the Court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a documents is inadmissible, until the non-production of the original is accounted for, so as to bring it within one or other of the cases available in the Section. The secondary evidence must be authenticated by foundational evidence that the alleged - 4 - copy is in fact a true copy of the original. The same view has been taken by the Apex Court in the case of Smt. J. Yashoda Vs. Smt. K. Shobha Rani 2007 SCCR 655. 10. From perusal of the impugned order, it appears that the learned Court below found that there is no evidence that the attested copy is of the original Baibeyana and there is no evidence of existence of the Baibeyana and, therefore, refused to accept the document as secondary evidence. The learned counsel for the petitioner submitted that in another case, the said document has been exhibited. In reply to this, the learned counsel for the respondent submitted that only the signature has been exhibited and not the contents of the document. 11. In view of the above facts and circumstances of the case, I do not find any jurisdictional error in the impugned order. Therefore, in supervisory jurisdiction, the impugned order cannot be interfered with. Therefore, the learned Court below has rightly rejected the review application also. 12. Thus, both the writ applications are dismissed. Patna High Court, Patna The 22ndday of December, 2011 Sanjeev/N.A.F.R. (Mungeshwar Sahoo,J.)