Prabhakar Joshi vs Raj Kumar and Others

Sujoy Paul, J.—Heard.

This petition filed under Article 227 of the Constitution is directed against the order dated 2.8.2013 (Annexure P/5) passed in Case No. 149A/2012 by the trial Court, whereby the application of the petitioner/defendant preferred u/s 65 of the Evidence Act is rejected.

In a suit for eviction and restoration of possession the petitioner/defendant filed application, Annexure P/4. By preferring said application, it is contended that number of litigations were going on between the plaintiff and defendant. In those litigations, certain documents were filed but could not be later on traced. It is prayed that said documents, which were filed in those litigations, be treated as secondary evidence. The description of said documents is mentioned in para 2 of the application.

Learned court below rejected the said application on the ground that it is not mentioned by the petitioner as to in which case the original documents were filed. Case number and other necessary details are not furnished by the petitioner which may throw light as to in which case such original documents are filed. Petitioner being a party in those litigations was required to know and furnish said information. In addition, the application is rejected on the ground that there is no assertion in the application, Annexure P-4, that the photocopies are obtained by mechanical process from original documents. The application is not even supported by affidavit.

Shri V.S. Chaturvedi, learned counsel for the petitioner, submits that the order is bad in law and it is difficult for the party to remember where exactly original documents were filed.

I have heard learned counsel for the petitioner and perused the record.

The scope under Article 227 of the Constitution is limited. Interference can be made when the order is passed by a court having no jurisdiction, it suffers from manifest procedural impropriety/irregularity, it suffers from palpable perversity. Another view is possible is not a ground for interference. This Court is not obliged to sit as an appellate authority. Interference can be made sparingly with a view to keep the courts below within the bounds of their authority. The purpose of exercising its power is not to correct factual or legal error. This view is taken by the Supreme Court in Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil,

The secondary evidence can be admitted only when it fulfills the requirement of Sections 63 and 65 of the Evidence Act. The petitioner is unable to show that such ingredients are fulfilled. The court below has taken a plausible view. In absence of showing the existence and whereabouts of originals in specific and without satisfying the requirement of Sections 63 and 65 of the Evidence Act, the photocopies cannot be admitted as secondary evidence on mere asking. Petition is misconceived and is bereft of merits. It is hereby dismissed. No costs.