Devkaran vs Ghasi And Ors

This writ petition has been filed by the petitioner-plaintiff (hereinafter referred to as 'the plaintiff') against the order dated 21.11.2016 passed by the

Trial Court, whereby the application filed by the plaintiff under Section 65 of the Evidence Act has been dismissed.

Facts of the case are that the plaintiff filed a suit for specific performance of the family settlement dated 6.2.1994.

During the pendency of the suit, the plaintiff filed an application under Section 65 of the Evidence Act for exhibiting certified copy of the family

settlement as secondary evidence on the ground that the original thereof was lost. The defendants filed reply to the said application. The Trial Court

vide its order dated 21.11.2016 dismissed the plaintiff's application filed under Section 65 of the Evidence Act.

Hence this writ petition.

Learned counsel for the plaintiff submitted that on 6.2.1994 a family settlement was arrived at between the parties, and a copy thereof duly notarized

from the Notary Public, was presented in the Court at the time of filing the suit. Subsequently, the original family settlement was lost, as a result of

which its certified copy was required to be exhibited. The Trial Court, without considering this aspect of the matter vide its order dated 21.11.2016,

dismissed the application filed by the plaintiff. In support of his contentions, learned counsel for the plaintiff has relied on the following judgment:

Keshu Ram Versus Sonaki Bai reported in 2018 (1) WLC (Raj.) 589

Per Contra, learned counsel for the defendants submitted that purported family settlement, photostat copy of which is sought to be taken on record by

the plaintiff, is forged and fabricated, for which the plaintiff cannot be allowed to lead secondary evidence. He has further submitted that when the

existence of the document is disputed, the plaintiff cannot be allowed to lead secondary evidence. He has further submitted that the photocopy of the

certified copy of the purported family settlement has been produced and no FIR was lodged by the plaintiff for loss of the original family settlement.

The Trial Court after due consideration of the material on record, has rightly passed the impugned order, which calls for no interference by this Court.

Heard. Considered. Perused.

The Coordinate Bench of this Court in the case of Gordhan Lal Agarwal Versus Mali Ram Modi & Anr. reported in 2013 (2) WLC (Raj.) 131 has

held as under:

There are limitations of this Court under Article 227 of the Constitution of India in interfering with interlocutory orders passed in the course of a trial.

From an analysis of the judgments of the Hon'ble Supreme Court on the scope of the powers under Article 227 of the Constitution of India, the

principle that emerges is that the exercise of supervisory jurisdiction would only be available in order to maintain public confidence in the administration

of justice and for interference when the orders impugned generated issues of lack or excess of jurisdiction or were vitiated by misdirection in law or

perversity of facts leading to manifest injustice to the aggrieved party. In my considered opinion, none of the aforesaid grounds are even remotely

made out.

The Hon'ble Supreme Court in the case of H. Siddiqui Versus A. Ramalingam 2011 (1) WLC (SC) Civil 475 has held that the provision of Section 65

of the Act of 1872 provides for permitting the parties to adduce secondary evidence. However, such a course is subjected to a large number of

limitations. In a case where the existence of original documents is disputed and their genuineness is doubted nor any factual foundation has been led

for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to

the contents of a document is inadmissible until the non production of the original is accounted for, so as to bring it within one or other cases provided

for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original.

The judgment passed by the Coordinate Bench of this Court in the case of Keshu Ram Versus Sonaki Bai (supra) is not applicable to this case for the

reason that the photostat copy of the document sought to be taken on record as secondary evidence, was a copy obtained by mechanical process and

the authenticity thereof was not doubted.

The Trial Court while dismissing the plaintiff's application under Section 65 of the Evidence Act observed that neither FIR was lodged by the plaintiff

with regard to the loss of the original family settlement nor any evidence was produced by him before the Trial Court that an effort was made for

searching out the same nor any time or place of missing of original family settlement was mentioned.

The findings arrived at by the Trial Court in its order dated 21.11.2016 while dismissing the application under Section 65 of the Evidence Act are just

and proper.

I find no reason to interfere with the order dated 21.11.2016 in exercise of this Court's supervisory jurisdiction under Article 227 of the Constitution of

India.

For these reasons, I find no force in this petition and the same stands dismissed accordingly.