Ambubai vs Pannalal And Others

By this misc. petition under Article 227 of the Constitution, defendant No.3 in the suit has challenged order of the trial Court dated 17/12/2018

whereby the petitioner’s application under Section 65 of the Evidence Act has been rejected.

Learned counsel appearing for the petitioner submits that the trial Court has committed an error in rejecting the petitioner’s application without

appreciating that the original Will was lost, therefore, its photocopy was produced and the petitioner had already filed the affidavits of the witness of

the Will.

As against this, learned counsel for the respondents submits that since the requirement of Section 63 read with Section 65 of the Evidence Act are not

satisfied, therefore, the trial Court has rightly rejected the application.

Having heard the learned counsel for the parties and on the perusal of the record, it is noticed that during the trial of the suit, the petitioner had filed an

application under Section 65 of the Act seeking permission to exhibit the photocopy of the Will on the ground that the original was lost. The trial Court

has duly considered the said application and has passed a detailed reasoned order while rejecting it. The trial Court has noted that no affidavit in

support of the said application was filed nor in the application, the petitioner had disclosed that the photocopy was prepared by mechanical process

from the original Will. The order of the trial Court reveals that there is nothing on record to show that the photocopy was prepared from the original

Will. Since the requirements of Section 63 read with Section 65 of the Evidence Act was not satisfied, therefore, the trial Court had rejected the

application.

This Court in the matter of Haji Mohd. Islam and another Vs. Asgar Ali and another reported in 2006 (3) MPLJ 334 while considering the earlier

judgement on the point has held as under:-

“10. On a perusal of the stand taken by the plaintiffs it is quite luminescent that they had denied the execution of the documents. No proof has been

produced that the document was executed and they are in possession of the plaintiffs. There is also no assertion that the said document is in the

dominion and power of the plaintiffs. The copy which has been filed in tendering the secondary evidence was neither a certified copy nor a true copy

of the original deed.

In this context, I may refer with profit to the decision rendered in the case of Badrunnisa Begum v. Mohamooda BegumAIR 2001 AP 394,

wherein the Division Bench after referring to the illustration made in Section of Evidence Act has held as under:

As is seen above, this illustration merely says that 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 66 does not produce it. So, in order to get the benefit under Section 65 (a) hree things have

to be shown: (1) that the document is, or appears to be in the possession or power of the person against whom the document is sought to be proved;

(2) it is in possession of any person out of reach, or not subject to the process of the Court, or of any person legally bound to produce it; and (3) that

even after a notice under Section 66 the person who has its custody does not produce it. Section 66 lays down the mode of getting the document

before the Court. Under this section the person who wants the document has to give a notice to the person in whose custody the document is, and if

no such notice is prescribed under law then a notice which the Court may consider reasonable. Therefore, Section 63 of the Evidence Act lays down

what can be termed as secondary evidence and Section 65 lays down in which situations secondary evidence can be led. Section 65(a) does not in any

way make a copy of a copy admissible in evidence as it is barred under Section 63.

In this regard, I may profitably refer to the decision rendered in the case of United India Assurance Co. Ltd. v. Anbari and Ors., (2002) 10 SCC

523 wherein the Apex Court while dealing with the photo copy of the licence of a driver expressed the view as under:

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 photo copy 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

photo copy was not sufficient to prove that the driver had a valid licence when the fact was challenged by the appellant and genuineness of the photo

copy was not admitted by it.

In this context, it is apposite to refer to the decision rendered in the case of Kalyan Singh v. Smt. Chhoti and Ors. (1990) 1 SCC 266, wherein it

has been held as under:

The High Court said, and in our opinion very rightly, that Ex. 3 could not be regarded as secondary evidence. Section 63 of the Evidence Act

mentions five kinds of secondary evidences. Clauses (1), (2) and (3) refer to copies of documents; Clause (4) refers to counterparts of documents and

Clause (5) refers to oral accounts of the contents of documents. Correctness of certified copies referred to in Clause (1) is proper evidence. A

certified coy 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.

If the obtaining factual matrix is tested on the touchstone of the aforesaid principles of law, the document that has been sought to be tendered as

secondary evidence is neither a certified copy nor a true copy indicating endorsement. In my considered view the document does not meet with the

requirement of Section 65 of the Evidence Act. In the absence of any proof and requirement of law not being satisfied. I am of the considered opinion,

the order of the learned Trial Judge does not suffer from any infirmity.â€​

Having regard to the aforesaid, I am of the opinion that the trial Court has not committed any patent illegality in rejecting the petitioner’s

application.

Even otherwise, the Supreme Court in the matter of Jai Singh and others Vs. Municipal Corporation of Delhi and Another reported in 2010(9) SCC

385 while considering the scope of interference under Article 227 of the Constitution, has held that the jurisdiction under Article 227 cannot be

exercised to correct all errors of judgement of a court, or tribunal acting within the limits of its jurisdiction. Correctional jurisdiction can be exercised in

cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice.

Having regard to the aforesaid, I am of the opinion that no case for interference in the impugned order of trial court is made out. The misc. petition is

accordingly dismissed.