Anand Ram vs Padam (Decd.) Through Smt. Rajubai & Ors

The petitioner before this Court, who is plaintiff, is aggrieved by order dated 05/12/2013 passed in Civil Suit No.57-A/2012 by Civil Judge, Class-II,

Kasrawad, Distt. Khargone. By the aforesaid order the application preferred under Section 63-65 of the Indian Evidence Act seeking permission to

lead secondary evidence, has been rejected.

The facts of the case reveal that plaintiff has filed a suit for declaration and possession in respect of agricultural land admeasuring 1.25 acrs bearing

survey No.58 of Village Kakriyav, Tehsil Kasrawad, Distt. Khargone and thereafter, he has filed an application (Annex.-P/8) for leading secondary

evidence, meaning thereby, he has produced a photocopy of the will on the basis of which relief was prayed for and the trial Court has rejected the

application by the impugned order dated 05/12/2013.

In the case of Ramrao Vs. Natthu reported in AIR 2011 MP 195 coordinate Bench of this Court in paragraphs No.3 to 5 has held as under:-

“3. The first appeal which was filed by the plaintiff has also been dismissed by the impugned judgment and decree. In this manner the second

appeal has been filed by the plaintiff.

On 18-3-2005 this Court admitted this appeal on the following substantial question of law : Whether the impugned judgment can be sustained in view

of the finding regarding the execution of the Will by the testator having been surrounded by suspicious circumstances rendered by both the Courts

below which has resulted due to misreading of the evidence on the record. Regarding substantial question of law:

The contention of learned counsel for the appellant is that the main emphasis which has been put forth by learned two Courts below in dismissing

the suit is Ex.D/1 which is a photocopy of the affidavit of the attesting witness to the Will Mohan (PW-2) filed in the Revenue Court, Pandhurna

wherein he had stated that he did not put his signature on the Will of Karuji and further stating in it that plaintiff called him at his (plaintiffs) house

under the pretext that he (Mohan) had to sign on the partition deed. The document was also not read over to him. Learned counsel submits that this

document (Ex.D/1) is a photocopy and is inadmissible in evidence and, therefore, learned two Courts below erred in substantial error of law in placing

reliance on this document and holding the Will to be suspicious. Hence, it has been contended by learned counsel that on account of taking account on

the inadmissible evidence, the learned two Courts below have come to the conclusion that the Will is suspicious and, therefore, the said finding is

having no sanctity in the eye of law.

On the other hand, Shri Sirpurkar, learned counsel for the defendants, argued in support of the impugned judgment and submitted that learned two

Courts below have arrived at a finding that the suit property was not the self-acquired property of the testator Karuji and if that would be the position,

he was not having any right to bequeath the property of HUF in favour of the plaintiff. Learned counsel submits that no substantial question of law has

been framed by this Court on this point, hence, the said finding became final. Learned counsel by inviting my attention to the finding of learned two

Courts below has submitted that even if the authenticity of the document Ex.D/1 is sidelined, there is overwhelming evidence in order to show that the

Will is suspicious. In support of his contention, learned counsel placed heavy reliance on the decision of the Division Bench of this Court in the case of

Kishan Singh Ahluwalia vs. Smt. Sheela Saxena and others, 2001 (2) MPLJ 117 : 2001(2) JLJ 287 and Keshav Prasad and another vs. Smt. Bhuwani

Bai and another, 2007 (1) MPLJ 499 : 2006(4) MPHT 338.

Having heard learned counsel for the parties, I am of the view that this appeal deserves to be dismissed.

I am in full agreement with the submissions put forth by learned counsel for the plaintiff/appellant that the document Ex.D/1 is inadmissible in

evidence for the simple reason that it is a photocopy. According to me, merely because an exhibit mark put on an inadmissible document would not

render it admissible. There is no provision in the Evidence Act to admit a photocopy of some document in evidence as the same is neither primary nor

secondary evidence. Hence, I am of the view that learned two Courts below erred in placing reliance on this document.â€​

In light of the aforesaid judgment in respect of a photocopy of a will, the trial Court was justified in rejecting the application preferred under Section

63-65 of the Indian Evidence Act. The order passed by the trial Court does not suffer from jurisdictional error nor from any perversity.

The apex court in the case of Shalini Shyam Shetty Vs. Rajendra Shankar Patil reported in 2010 (8) SCC 329 in paragraph 49 held as under:-

On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of

the Constitution may be formulated:

(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under

these two Articles is also different.

(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is

substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed

above.

(c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the

orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal

subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of

this power by the High Court.

(d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this

regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles

in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.

(e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can

interfere in order only to keep the tribunals and Courts subordinate to it, 'within the bounds of their authority'.

(f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to

exercise the jurisdiction which is vested in them.

(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent

perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles

of natural justice have been flouted.

(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than

the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.

(i) High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of

the Constitution by the Constitution Bench of this Court in the case of L. Chandra Kumar vs. Union of India & others, reported in (1997) 3 SCC 261

and therefore abridgement by a Constitutional amendment is also very doubtful.

(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code

(Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered

that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.

(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.

(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is

to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.

(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of

justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to the minimum to ensure that

the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the

functioning of the tribunals and Courts subordinate to High Court.

(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed

for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual

grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.

(o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality.

In light of the aforesaid judgment as no patent illegality has been committed by the trial court and the order passed by the trial court does not suffer

from any jurisdictional error, this court does not find any reason to interfere with the order dated 05/12/2013.

No order as to costs. Certified copy as per rules.