Anju Devi W/o Shri Ramswaroop vs Damodar W/o Shri Mahendra Kumar Jat

The petitioner has laid a challenge to an order dated

13.10.2017 passed by the learned Senior Civil Judge & Additional

Chief Judicial Magistrate, Merta (hereinafter referred to as the

"Trial Court") whereby, the plaintiff''s application under Section 65

of the Indian Evidence Act has been allowed.

The apropos facts for the purpose of the present writ petition

are that the plaintiff-respondent No.1 preferred an Election

Petition, laying challenge to the election of the petitioner as a

Sarpanch, inter alia, contending that the petitioner is having more

than two children on the cut-off date, i.e., 28.11.1995. The said

assertion of the Plaintiff had been denied by the petitioner and

even the averments regarding obtaining Ration Card and allegedly

filed Application No. 371 before the Municipal Council, Merta City

were disputed.

During the pendency of the proceedings, the plaintiff

submitted a certified copy of the aforesaid Application No. 371,

said to have been submitted before the Municipal Council, Merta

by the petitioner. The plaintiff also submitted application under

Section 65 of the Evidence Act, which was opposed by the

petitioner. The learned Trial Court, however, vide its order dated

13.10.2017 has allowed the same, while observing as under:-

"VERNACULAR MATTER OMITTED"

Mr. G.R. Punia, learned Senior Counsel with Mr. Rajendra

Prasad, assailing the order dated 13.10.2017 submitted that it

may be true that the document, i.e., application No. 371, certified

copy whereof has been placed in the record of the learned Trial

Court, is a public document; however, until and unless, the

mandate of Section 66 of the Evidence Act is complied with, by

issuing a notice, the same cannot be taken on record. Mr. Punia

submitted that if despite petitioner''s assertion that no such

application has been submitted by her; the document in question,

which is apparently forged, is taken on record, it would

prejudicially affect the rights of the petitioner and would take

away her right to question its genuineness otherwise.

Heard learned counsel for the petitioner and perused the

material available on record.

In considered opinion of this Court, no error of law has been

committed by the learned Trial Court in allowing plaintiff''s

application dated 25.09.2017 filed under Section 65 of the Indian

Evidence Act. The document in question is admittedly a public

document, secondary evidence whereof can be led.

The contention of Mr. G.R. Punia, that before taking the

certified copy of the contentious document, i.e., the application

allegedly submitted by the petitioner, the requirements of Section

66 of the Evidence Act, 1872, i.e., serving a notice was mandatory

is unsustainable in law. It is noteworthy that the provisions

contained in Section 66 of the Evidence Act are applicable in cases

falling under Clause (a) of Section 65 of the Evidence Act, 1872,

however, the subject document, Application No. 371, does not fall

within the ambit of Section 65(a), and as such, there is no

requirement of complying with the provisions of Section 66 of the

Evidence Act.

This Court does not find any illegality in the order under

challenge passed by the learned Trial Court.

Needless to observe that merely "letting-in" the certified

copy of the document in question would not be a conclusive proof

of the said application having been filed by the petitioner. The

petitioner-defendant, a returned candidate, shall have all her

rights reserved to assert that the said application has neither been

filed by her nor signed by her or on her behalf. The Trial Court

shall decide the petitioner''s objection in this regard, in accordance

with law.

Petition dismissed.