A.Velleshwami vs Bhopal Vikas Pradhikaran Bhoal

This petition filed under Article 227 of the Constitution impugns the order dated 16-08-2017 whereby the application preferred by the respondent

No.1/plaintiff under Section 65 of the Indian Evidence Act, 1872 was allowed by the Court below.

The respondent No.1 instituted a suit for eviction andre-entering into the suit premises. During the pendency of said suit, the plaintiff filed an

application seeking direction against the defendant No.2 to produce the original lease deed dated 07-04-1982. Parties appearing before the court

agreed by order dated 22-10-2016 that the Court below allowed the said application but lease deed was not produced by original lesse/defendant No.2.

The stand of plaintiff is that lease was originally granted in favour of defendant No.2, who in turn granted it to defendant No.1/present petitioner.

The plaintiff obtained certified copy of lease deed fromthe office of Deputy Registrar and produced the same alongwith an application dated 08-05-

2017 (Annexure P/2) filed under Section 65 of the Indian Evidence Act. The plaintiff prayed that the certified copy of said lease deed may be treated

as a secondary evidence.

The defendant No.1/petitioner opposed the same bycontending that necessary ingredients for invoking Section 65-(c) are not satisfied and,

therefore, Court below has erred in passing the impugned order. By placing reliance on 1994 (1) MPWN 300 (Gopal Sharma vs. Smt. Savitri Devi

Ojha), learned counsel for the petitioner contended that the plaintiff could have summoned the original document through the Court but such certified

copy of document cannot be treated to be a public document. He also placed reliance on 2013 (3) MPLJ 242 (Vijendra Singh & Others vs. Deena &

Others).

Per contra, Shri Duggal contends that the plaintiff send a notice under Section 66 of the Indian Evidence Act to the defendant No.2 for production

of copy of lease deed dated 07-04-1982. The said notice went in vain and, therefore, aforesaid application was filed alongwith certified copy of lease

deed. Thus, the requirement of Section 65(a) has been satisfied. There is no jurisdictional error committed by the Court below, which warrants

interference by this Court.

No other point is pressed by the parties.

I have heard the parties at length and perused the record.

Section 65 of the Evidence Act, 1872 reads as under :-

65. Cases in which secondary evidencerelating to documents may be given.Secondary evidence may be given of the existence, condition, or

contents of a document in the following cases:

(a) When the original is shown or appears to be in the possession or powerâ€" 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, such person does not produce it;

(b) when the existence, condition or contents ofthe original have been proved to be admitted in writing by the person against whom it is proved or by

his representative in interest;

(c) when the original has been destroyed or lost,or when the party offering evidence of its contents cannot, for any other reason not arising from his

own default or neglect, produce it in reasonable time;

(d) when the original is of such a nature as not tobe easily movable;

(e) when the original is a public document withinthe meaning of section 74;

(f) when the original is a document of which acertified copy is permitted by this Act, or by any other law in force in 1[India] to be given in evidence2;

1[India] to be given in evidence2;

(g) when the originals consists of numerousaccounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is

the general result of the whole collection. In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. In case (b),

the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case

(g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of

such documents.â€Â​

As noticed, learned counsel for the petitioner placed reliance on clause (c) of Section 65 whereas learned counsel for the respondent based his

arguments on clause (a) of said section. During the course of arguments, learned counsel for the petitioner agreed that there was only one original

copy of the lease deed dated 7.4.82. The case of the plaintiff is that the said original sale-deed was handed-over to the original lessee/ respondent

No.2 immediately after its execution and hence said original lease deed is not in possession of the present respondent/plaintiff. The plaintiff, therefore,

filed an application before the trial court for summoning the said document from respondent No.2. In turn, respondent No.2, appeared and stated that

the original lease deed was not in his possession and, therefore, expressed his inability to produce the same. Thereafter, the plaintiff obtained certified

copy of the lease deed from the Registrar Office and produced it with an application filed under section 65 of the Evidence Act.

The moot question is whether such document can be treated as secondary evidence. The Supreme Court in Maneklal Mansukhbhai Vs. Hormusji

Jamshedji

Ginwalla and Sons-AIR 1950 SC-1 opined as under :-

It is no doubt true that Ex. 181 is merely secondary evidence of the agreement of lease but it is equally true that it is a very reliable piece of secondary

evidence coming as it does from government records. It furnishes proof of the fact that there was an acceptance in writing under which the contract

to transfer the survey numbers in suit by way of lease was effected by the Talukdari Settlement Officer in favour of Manilal Maganlal. The offer was

also in writing signed by the offeror. The Government Resolution which made the agree- ment binding was also in writing and was signed by

competent authority. No objection as to admission of secondary evidence could be taken in this case as the primary evidence was in the possession

either of the plaintiff or of the talukdars, the predecessors in interest and in spite of notice it was not produced.

In Chandranath Mukherjee Vs. Tusharika Debi and Others- AIR 1985 SC-521, it was held as under :-

The landlords' rent-roll was not in the custody or control of the plaintiffs. They served requisition on their landlords to produce those documents. As

those documents were not produced by the parties who would ordinarily be in possession of their rent-rolls, the plaintiffs had no option but to adduce

secondary evidence of the mutation, namely, the order sanctioning mutation and the payment of rent to the superior landlord, in pursuance of the

sanction of mutation. Like any other disputed fact, the factum of mutation in the landlords' rent-roll, can be proved by the production of the original

rentroll or by its certified copy, if available, and failing those, by other secondary proof of mutation.

The Division Bench of this Court in AIR 2006 MP-107 (Smt Rekha Rana & others Vs. Smt. Ratnashree) considered the following questions :-

 (i) Whether a sale deed (duly registered) is a public document ?

(ii) Whether a certified copy of a sale-deedissued by the Registering Officer is a public document ?

(iii) Whether a certified copy of a publicdocument can be received in evidence without any further proof ?

(iv) What is the effect and efficacy of producingand marking a certified copy of the sale deed ? (v) Whether the order of the trial Court requires

interference ?

In this case, question No.(iv) is relevant. The Division Bench while dealing with the said question opined as under :18. Proving execution of a

registered sale deed (or any other registered document which is not required by law to be attested) has two steps. The first step is production of the

original sale deed or lay the foundation for letting in secondary evidence of the sale deed, by way of certified copy of the sale deed, by showing the

existence of any of the circumstances mentioned in clauses (a), (b) and (c) of Section 65. In other words, a certified copy can be offered as

secondary evidence of the original sale deed under Clause (a) of Section 65, by establishing that the original is in the possession or power of he person

against whom the document is sought to be proved, or in the possession or power of any person out of reach of or not subject to the process of the

Court, or in the possession of any person who is legally bound to produce it, and such person (of the three categories) does not produce it in spite of

notice under Section 66 of the Act. A certified copy of the sale deed can also be offered as secondary evidence under Clause (c) ofSection 6 5, by

showing that the original is destroyed or lost (or when the party offering evidence of its contents cannot, for any other reason not arising from his own

default or neglect, produce it in reasonable time).

(Emphasis supplied)

The court below in the impugned order gave a finding that by order dated 22.10.2016, the plaintiff's application was summoned and the defendant

No.2 was directed to produce the lease deed. The said lease deed was not produced by the said defendant. Clause (a) employs an expression that

when the original is shown or appears to be in possession, the court below opined that the original lease deed is normally prepared in one copy and

original lessee keeps the said copy. The defendant No.2 was such person who was supposed to have a copy of said lease deed. Since, the plaintiff has

fulfilled the requirement of sub-clause (a), the court below has treated the said document as secondary evidence. In the opinion of this court, the court

below has taken a plausible view which is in consonance with the view taken by the Division Bench of this court in the case of Rekha Rana (supra)

and judgments of Apex Court in the case of Maneklal and Chandranath (supra).

So far the judgment of this court in the case of Gopal Sharma (supra) is concerned, in the said case, one of the reason for allowing the prayer for

taking secondary evidence on record was that summoning of original will consume some time. That is not the situation in the present case. In the

present case, this is also not the question raised whether said document is a public document or not. Thus, the said judgment of Gopal Sharma (supra)

is of no assistance to the petitioner.

In the case of Vijendra Singh (supra) , the document was a true/ photocopy of the original document. For admitting secondary evidence, necessary

ingredients required in section 65 of the Evidence Act were not satisfied. The document was not properly stamped. These factual ingredients are not

available in  he present case. Hence, this judgment is also of no use  o the petitioner. As noticed, the plaintiff has fulfilled the equirement of section

65(a) of the Evidence Act. The court below has taken a view which is plausible and the impugned order does not suffer from any jurisdictional error,

procedural impropriety or perversity. Hence, no interference is warranted in the present case. Petition sans substance and is hereby dismissed.