// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.4117/2008 Raj Kumar Deewan S/o late Shri Srichand Deewan Versus The Rent Control Tribunal, Sikar and Others Date of Order ::: 01.09.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri M.M. Ranjan, Counsel for petitioner Shri R.K. Agarwal, Counsel for respondents No.2 and 3 #### By the Court:- Admit. Shri R.K. Agarwal, Advocate, appears for the respondents No.2 and 3. Respondent No.1 is only a formal party, therefore, its service is dispensed with. Heard learned counsel for the parties. This writ petition, on behalf of the applicant-petitioner, is directed against the impugned order dated 2nd April, 2008, passed by the learned Rent Tribunal, Sikar, whereby the application filed on behalf of the applicant under Order 13 Rule 3 CPC has been rejected and the application filed on behalf of the non- applicant/respondents under Section 65 of the Indian Evidence Act to admit Exhibit-A-11 in secondary evidence has been allowed. The learned counsel for the petitioner // 2 // contended that the disputed document i.e. stamp dated 13.09.1984 is a forged document and the trial court committed an illegality in allowing the said document to be taken on the record and in granting permission for adducing secondary evidence in this regard, therefore, the impugned order is liable to be set-aside by this Court. The learned counsel for the respondents contended that the document, in question, is a Photostat copy of the original and, so far as allegation of the petitioner that this document is forged one, an enquiry in this regard can be made at proper stage. In support of his contention, the learned counsel for the respondents relied upon the decision of the Hon'ble Supreme Court in Nawab Singh v. Inderjit Kaur – AIR 1999 SC 1668 , wherein their Lordships of the Hon'ble Supreme Court, while considering the case relating to Section 65 of the Indian Evidence Act, 1872, held as under:- “3. Having heard the learned counsel for the parties, we are of the opinion that the trial court was not justified in rejecting the prayer seeking leave of the court for production of secondary evidence. The prayer has been rejected mainly on the ground that the copy of the rent note sought to be produced by the appellant was of doubtful veracity. The trial court was not justified in forming that opinion without affording the appellant an opportunity of adducing secondary evidence. The // 3 // appellant has alleged the original rent note to be in possession of the respondent. The case was covered by Clause (a) of Section 65 of the Indian Evidence Act, 1872.” The learned counsel for the respondent also relied upon another decision of this Court in M/s. Hindustan Engineering Company & Another Vs. Bhagwanlal & Another – 2002 WLC (Raj.) UC 285, wherein this Court held as under:- "4. A secondary evidence with respect to the document can be produced by the parties in circumstances and one of the circumstance is that when document is not in power and possession of the party relying upon the document and unable to obtain from the party in whose possession the document is. Not only this, but even if a document is lost, the permission to produce secondary evidence for the lost document can be granted. So far as that the original copy is not even available in the file of the RSEB, Bhilwara is concerned, it is only shown that document is not available in the office of the RSEB, Bhilwara, even then the defendant can prove that, in fact, the application was actually submitted and the circumstances, in which the document is not availble in the file of the RSEB, Bhiwlara. The document, in fact, was submitted in the office of the RSEB or not and the question whether the same was in existence or not are required to be decided by the trial court after giving opportunity to lead evidence wherein both the parties will be free to lead evidence. If the court comes to the conclusion, after the evidence that, in fact, the original document was in existence then this copy of the document, if found to be correct and true copy of the original, this document and its effect will be considered while deciding the suit. // 4 // 5. Therefore, at this stage, the trial court has committed an illegality in dismissing the application of the defendant without holding any enquiry with respect to the existence of the document in question and the correctness of the copy of the original produced by the defendant. All these can be done alongwith the proceedings in the trial of the suit itself and the documents could have been admitted in evidence subject to final decision of the existence of the original document and whether the copy, which is alleged by the defendant is true and correct of the above document or not is to be decided after the evidence of the parties while deciding the suit itself. 6. .... 7. The order dated 27th Jan., 1999 is set aside. The application of the defendant under Section 65 of the Indian Evidence Act is allowed subject to the condition that it can be acted upon only after trial of the suit the trial court comes to the conclusion that original document was in existence and copy produced by the defendant-petitioner is true and correct of the original. The non-petitioner shall also have right to rebut the above document." I have considered the submissions of the learned counsel for the parties in the light of reasons assigned by the learned trial court for dismissing the application under Order 13 Rule 3 CPC and allowing the application under Section 65 of the Indian Evidence Act and, after considering the same, I do not find any illegality, perversity or jurisdictional error in the impugned order so as to interfere with // 5 // the same under Article 227 of the Constitution of India. The Hon'ble Supreme Court in Babhutmal Raichand Oswal Vs. Laxmibai R. Tarte – AIR 1975 SC 1297, held that the High Court cannot, while exercising jurisdiction under Article 227, interfere with finding of fact recorded by the subordinate court or tribunal. It's function is limited to seeing that the subordinate court or tribunal functions within the limits of its authority. It cannot correct mere errors of fact by examining the evidence and re-appreciating it. The Hon'ble Supreme Court in Mohd. Yunus Vs. Mohd. Mustaqim – AIR 1984 SC 38 , held that in exercising the supervisory power under Article 227, the High Court does not act as an Appellate Court or Tribunal. In view of the above, I do not find any merit in this writ petition and the same is accordingly dismissed with no order as to costs. (Narendra Kumar Jain) J. //Jaiman//