Subhash Khandelwal vs Bharat Kumar Kangya and Others

Sujoy Paul, J.—By invoking the jurisdiction of this Court under Article 227 of the Constitution, the petitioner/defendant has challenged the order dated 10.7.2013 passed in Case No. 4A/04x05 by the trial Court, Shivpuri. By impugned order, the petitioner''s applications preferred u/s 65 of the Evidence Act and under Order 18 Rule 2(4) C.P.C. are rejected.

Brief facts necessary for adjudication are as under:-

The respondent No. 1/plaintiff filed a civil suit for declaration and injunction along with a prayer for restoration of possession against respondent No. 2. The suit was decreed by judgment and decree dated 18.11.2004 which was affirmed in Civil Appeal No. 137A/04 on 17.3.2005. The Second Appeal No. 487/05 filed by respondent No. 2 was also dismissed on 29.12.2012.

The present petitioner during the pendency of Second Appeal 487/05 allegedly purchased the suit property from one Smt. Munni Devi. In execution proceeding, an application was preferred under Order 21 Rule 97 C.P.C. wherein it is contended that earlier property was owned by Kamla Bai and after her death Munni Devi was recorded as owner in the Municipal record. It is prayed that the question of title of the property be decided first. This application under Order 21 Rule 97 C.P.C. is filed as Annexure P-3. The respondent No. 1 refuted the averments and prayed for its dismissal by filing reply Annexure P-4. The petitioner then preferred an application under Order 16 Rule 1 C.P.C. for summoning the record of mutation proceedings from the Municipal Council. The Court below allowed the said application and summoned the record. However, the record did not contain the will and, therefore, the petitioner preferred an application u/s 65 of the Evidence Act (Annexure P-6) contending that he has obtained certified copy of will from the Municipal Council which along with other documents may be treated as secondary evidence. Yet another application under Order 18 Rule 2(4) C.P.C. was filed as (Annexure P-7) contending that the documents so filed along with the application u/s 65 of the Evidence Act are certified copies and, therefore, he be given permission to prove the same documents without which matter cannot be decided. The Court below rejected both the applications.

Shri V.K. Bharadwaj, learned counsel for the petitioner submits that the order of Court below is bad in law. By taking this Court to Section 63 and 65 of the Evidence Act, it is contended that the said documents must be treated as secondary evidence. He relied on M. Chandra Vs. M. Thangamuthu and Another, in this regard. He submits that as per Order 18 Rule 2(4) C.P.C. (M.P. Amendment), the application should have been allowed and the petitioner should have been permitted to lead secondary evidence to prove those documents.

Shri K.B. Chaturvedi, learned senior counsel, per contra, submits that the will submitted by the petitioner is a fake document (page 38). It does not contain any date. The will is not a public document and, therefore, it cannot be taken as secondary evidence. It is further contended that the ingredients of Section 63 and 65 of the Evidence Act are not satisfied. Hence, the trial Court has not erred in rejecting the said application. He relied on certain judgments in support of his contentions.

I have bestowed my anxious consideration on the rival contentions of the parties and perused the record.

The Court below has rejected the application preferred u/s 65 of the Evidence Act on the ground that the petitioner intended to prove the will of Kamla Devi but there is no averment/pleading regarding such will in his main application preferred under Order 21 Rule 97 of C.P.C., nor he led evidence in this regard. The Court opined that the evidence of the parties including that of petitioner is already concluded. The petitioner has deliberately filed these documents to delay the proceedings. In absence of any pleading in the application under Order 21 Rule 97 C.P.C., no evidence can be permitted to be led. It is further opined by the Court below that the ingredients of Section 65 are not satisfied.

The scope of interference under Article 227 of the Constitution is limited. Interference can be made if the order impugned is passed without any authority of law, it suffers from any manifest procedural impropriety or palpable perversity. Another view is possible is not a ground for interference. In Mohd. Yunus Vs. Mohd. Mustaqim and Others, ), the Apex Court opined that the basic purpose of exercising supervisory jurisdiction under Article 227 of the Constitution is to ensure that the inferior Court or Tribunal functions within the limits of its authority. This power is not to be exercised to correct an error apparent on the face of the record, much less an error of law. The High Court in exercise of supervisory power under Article 227, does not act as an appellate Court or Tribunal. It is not obliged to re-weigh or review the evidence. The same view is taken by Supreme Court in Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, . On the basis of this litmus test, it is to be seen whether the ingredients for interference are available in the impugned order.

The Court below has rejected the application u/s 65 mainly on the ground that there is no averment in the main application regarding the will. In Sukhia alias Sushma (Mst.) Vs. Gambhira, , this Court opined on the basis of The Roman Catholic Mission Vs. State of Madras and Another, ) that where no original document was produced, no foundation was laid to establish the right to give secondary evidence, secondary evidence cannot be permitted. In the present case, the petitioner has not established foundation by way of pleading in his main application regarding the will. Thus, the findings of the Court below are in accordance with law and cannot be interfered with. The Court below has taken a plausible view. Another view is possible is not a ground for interference as held in Shalini Shyam Shetty (supra).

So far the application under Order 18 Rule 2(4) C.P.C. is concerned, it is gathered that the said provision was deleted from C.P.C. w.e.f. 1.7.2002. Thus, this application was misconceived. Even otherwise, in the said application, Annexure P-7, the petitioner has prayed for permission to prove the documents obtained from the Municipal Council. These documents were filed along with application u/s 65 of the Evidence Act. Once the said application was rejected by the trial Court and the finding is affirmed by this Court in this order, there is no scope of interference regarding the finding with regard to second application (Annexure P-7). On the basis of aforesaid analysis, I find no reason to interfere. Petition is merit-less and is hereby dismissed. No cost.