Gopal Bagrecha @APPELLANT@Hash Rajendra Bagrecha

This writ petition under Article 227 of the Constitution of India has been preferred claiming the following reliefs:

“(i) quash the order dated 11.01.2018 passed by the learned Additional District Judge No.2, Udaipur (Annexure-10); and

(ii) the application filed by the petitioner under Section65 of Indian Evidence Act may be allowed with costs throughout; and

(iii) any other appropriate relief which this Hon’bleCourt deems just & necessary in the fact and circumstances of the present case be granted in

favour of the petitioner;

(iv) Cost of the writ petition may be ordered to beawarded to the petitioner.â€​

The petitioner/plaintiff had filed a civil suit for possession of the shop in question and mandatory injunction against the respondent/defendant,

submitting therein that the premises at the ground floor belonging to Sheetal Nath Ji Maharaj Mandir Trust situated at Thob Ki Bari, Alka Hotel Road,

Udaipur is on rent of the petitioner, whose rent was regularly being paid by him to the said Trust.

The bone of contention in the present writ petition is an application moved by the petitioner under Section 65 of the Indian Evidence Act before the

learned court below, whereby the petitioner has sought to take photostat copy of the rent deed dated 01.04.1985 on record. However, the photostat

copy of the rent deed dated 01.04.1985 has been refused to be taken on record by the learned court below on the ground that the same did not inspire

confidence.

Learned counsel for the petitioner has submitted that taking of any document on record does not create any right in itself, and merely because a

document is brought on record as a secondary evidence, the same does not become a proof, and the contents thereof have to be proved strictly in

accordance with law. 5. Learned counsel for the petitioner, in support of the aforesaid submission, relied upon the judgment rendered by the

Hon’ble Bombay High Court in Eslie Noronha Vs. J. Lambert

Almeida & Anr., reported in 2012(4) Civil Court Cases 333 (Bombay), relevant para 7 of which reads as under:

“7. With regard to the contention of the learned Counsel appearing for the respondents that the petitioner would have to prove the contents of the

said documents, needless to say that merely because the petitioner has been permitted to lead secondary evidence it would not by itself dispense the

petitioner to prove the contents of the said documents. The petitioner will have to prove the contents of the documents in accordance with law.â€​

Learned counsel for the petitioner has further submitted that on a bare perusal of the written statement, it becomes amply clear that the rent deed in

question was submitted by the Trust.

Learned counsel for the petitioner has also shown to this Court that the application moved by the petitioner under Order 16 Rule 1(6) of CPC was

allowed by the learned court below, whereby the Trust in question was directed to furnish the original copy of the rent deed in question. The Trust

however, took a stand that the rent deed in question was not traceable, and therefore, the photostat copy of the rent deed was brought on record by

the Trust.

On the other hand, learned counsel for the respondent has submitted that the petitioner, in his application, has mentioned the document in question to

be certified in nature, whereas the said document is not certified.

To substantiate his submissions, learned counsel for the respondent has relied upon the precedent law laid down by the Hon’ble Apex Court in

Smt.J.Yashoda Vs. Smt.K.Shobha Rani [Appeal (Civil) No.2060 of 2007 decided on 19.04.2007], relevant portion of which reads as under:-

“In Ashok Dulichand Vs. Madahavlal Dube & Another [1975 (4) SCC 664], it was inter alia held as follows:-

“The appellant further failed to explain as to what were the circumstances under which the Photostat copy was prepared and who was in

possession of the original document at the time its photograph was taken. Respondent No.1 in his affidavit denied being in possession appeared to the

High Court to be not above suspicion. In view of all the circumstances, the High Court came to the conclusion that no foundation has been laid by the

appellant for leading secondary evidence in the shape of Photostat copy.â€​

Learned counsel for the respondent thus submitted that the mechanism provided to take the secondary evidence on record has not been fulfilled by

the petitioner, as he ought to have given a fresh affidavit regarding authenticity of the document in question, as he wanted the same to be taken on

record as secondary evidence.

After hearing learned counsel for the parties as well as perusing the record of the case, alongwith the precedent laws cited at the Bar, this Court is

of the opinion that taking on record a document, which, in this matter, is a rent deed dated 01.04.1985, would not create any absolute right in favour of

the petitioner, as it would merely give him an occasion to prove the contents of the document in question before the learned court below during

adjudication.

Moreover, the language of the written statement, to a certain extent, reflects that there is an admission on the part of the respondent regarding the

document i.e. rent deed in question.

Furthermore, allowing of the application under Order 16 Rule 1(6) of CPC itself reflects that the Trust has brought the same rent deed dated

01.04.1985 on record, may be not an original, but a photostat copy of the same.

This Court has also taken note of the fact that the photostat copy of the rent deed dated 01.04.1985, produced by a mechanical process, was

mentioned in the original suit, not refuted in the written statement and reiterated by the Trust, while replying to the application under Order 16 Rule

1(6) of CPC, as to the availability of the document in question with the Trust. In such circumstances, the learned court below has erred in passing the

impugned order.

Thus, in light of the aforesaid observations, the present writ petition is allowed and the impugned order dated 11.01.2018 passed by the learned

court below is quashed and set aside, and the application filed by the petitioner under Section 65 of the Indian Evidence Act to bring the rend deed

dated 01.04.1985 on record is allowed. However, it is made clear that the contents of the rent deed in question shall be required to be proved by the

petitioner before the learned court below, by adopting due process of law. It is further made clear that the respondent shall have all opportunity to

dispute the contents of the document in question.