Madhya Pradesh High Court
Dheeraj Singh Meena vs Brajmohan Meena on 3 March, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
NEUTRAL CITATION NO. 2025:MPHC-GWL:4664
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 3rd OF MARCH, 2025
MISC. PETITION No. 4986 of 2024
DHEERAJ SINGH MEENA AND OTHERS
Versus
BRAJMOHAN MEENA AND OTHERS
Appearance:
Shri Sarvesh Kumar Sharma - Advocate for the petitioner.
Shri Jitesh Sharma GA for the respondent/State.
ORDER
The present petition under Article 227 of the Constitution of India
is directed against the order dated 13.8.2024 passed by Second Civil
Judge, Junior Division, Chanchoda, District Guna in R.C.S.A.
No.10/2022, whereby the application preferred by the
respondent/plaintiff under section 63 read with section 65 of the Indian
Evidence Act and section 151 of CPC for taking alleged agreement to
sale dated 21.6.2019 as a secondary evidence was allowed ignoring the
mandatory provisions of section 63 of the Indian Evidence Act which
defines secondary evidence and further ignoring the provisions of
section 65 of the Indian Evidence Act which deals with the cases in
which secondary evidence relating to documents may be given.
2. The case of the petitioner in nutshell is that the present
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respondent/plaintiff had preferred a suit for specific performance of
contract on the basis of an agreement to sale dated 21.6.2019 alleging
that the terms of the said agreement is not being adhered too by the
petitioner/defendant and the sale deed in pursuance to the said
agreement is not being executed, therefore, the petitioner/defendant
may be directed to execute the sale deed in their favour and also hand
over the possession of the land.
3. A written statement denying the averments made in the plaint
was filed on behalf of the petitioner/defendant and it was averred
therein that no agreement to sale was executed between the parties,
rather it was a loan transaction of Rs.5 Lakhs and by taking advantage
of illiteracy of the present petitioners a false story has been developed
just to grab the land. Thus, had prayed for dismissal of the suit.
4. It was further averred in the written statement that the said
agreement was neither registered nor was found properly stamped and
also the original document which was required to be in possession of
the respondent/plaintiff has been alleged by the plaintiff to be not in
possession, which has also been denied to be in possession by the
petitioner/defendant. The respondent-plaintiff thus, earlier had moved
an application under Order 11 Rule 12 of CPC which was allowed by
the learned Trial Court vide order dated 11.7.2023, against which a
petition was preferred by the present petitioner which was registered as
Misc. Petition No.4151/2023 and was disposed of by this Court vide
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order dated 31.7.2023, wherein it was held that since only directions
have been issued to the petitioner/defendant that the documents which
has been sought by the respondent/plaintiff from the
petitioner/defendant were relevant for resolving the controversy
therefore, the petitioner was directed to produce the same and as they
had remedy to rebut or contradict the presence of those documents
with them under Order 11 Rule 13 of CPC therefore no interference was
made in the order and the petition was disposed of. Thereafter the
petitioner/defendant had placed on affidavit that the original agreement
to sale is not available with him and thereafter the learned Trial Court
has fixed the matter for evidence of the respondent/plaintiff and at that
juncture the application under section 63, 65 of the Indian Evidence
Act was moved by respondent/plaintiff for taking the photocopy of the
agreement to sale on record as secondary evidence and for marking it as
an exhibit, which was opposed by the present petitioner/defendant, but
the learned Trial Court by the impugned order has allowed the said
application and had taken the said photocopy of the agreement to sale
on record as secondary evidence. Aggrieved by the aforesaid, the present
petition has been filed.
5. Learned counsel for the petitioner by placing reliance in the
matter of Smt. Usha Dubey Vs. State of M.P. and others, (passed on
12.9.2023 in M.P.No.4721 of 2022) had argued that this Court while
considering various decisions has held that the photocopies of the
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documents cannot be taken on record as a secondary evidence without
any revelation of the source as a photocopy which is neither a certified
copy nor a true copy of the original does not meet the requirement of
section 65 of the Indian Evidence Act, therefore, the order impugned
suffers from patent illegality and accordingly the order was set aside.
6. It was further argued that herein case also the learned Trial
Court has not considered that for admissibility of the photocopy as a
secondary evidence not only the satisfaction of section 65 (a) is required
but it is also required that the photocopy was obtained by a mechanical
process from the original and was compared with the original in terms
of section 63 (3) and since this fact has not been pleaded or proved by
the respondent-plaintiff the order impugned herein suffers from
patent illegality and perversity, therefore, is liable to be set aside.
7. None for the respondent no.1 even after service of notice.
8. Counsel for the State on the other hand submits that it is an
dispute between the private parities, therefore, he has nothing to offer.
9. Heard learned counsel for the petitioner and perused the
record.
10. For adjudicating the controversy the relevant provisions of
section 63 and 65 are required to be seen. Section 63 of the Evidence
Act deals with definition of secondary evidence which reads as under:
63. Secondary Evidence means and includes:
(1) certified copies given under the provisions hereinafter
contained;
(2) copies made from the original by mechanical processes
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which in themselves ensure the accuracy of the copy, and
copies compared with such copies;
(3) copies made from or compared with the original;
(1) certified copies given under the provisions hereinafter
contained;
(2) copies made from the original by mechanical processes
which in themselves ensure the accuracy of the copy, and
copies compared with such copies;
(3) copies made from or compared with the original; 9.Further
section 65 of Evidence Act deals with the case in which
secondary evidence relating to the documents may be given.
For reference section 65 of Evidence Act is also quoted
hereinbelow:
Section 65. Secondary evidence may be given of the existence,
condition of contents of a document in the following cases:
(a) when the original is shown or appears to be in the
possession or power 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 of the 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 be easily
move-able;
(e) when the original is a public document within the meaning
of Section 74;
(f) when the original is a document of which a certified copy
is permitted by this Act, or by any other law in force in India,
to be given in evidence;
(g) when the originals consist of numerous accounts or other
documents which cannot conveniently be examined in court
and the fact to be proved is the general result of the whole
collection.
11. From the aforesaid definitions it is crystal clear that secondary
evidence includes categories mentioned in clause (1) to (5) of Section 63
and if conditions enunciated in section 65 (a) and (b) of the Indian
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Evidence Act exists secondary evidence relating to document can be
given. From perusal of the application under section 63 and 65 of
Indian Evidence Act it would be evident that therein the averments are
to the effect that agreement to sale is a notarized document and at the
time of its notarization the photocopy of the said document was
obtained which is available on the record and the said documents have
been prepared by mechanical process from the original one and in the
written statement the petitioner/defendant had admitted it to be an
agreement, therefore, the said document i.e. photocopy of agreement to
sale is required to be taken on record as a secondary evidence. In reply
though the factum of the execution of agreement to sale dated
21.6.2019 was denied, but the execution of document dated 21.6.2019
in form of the mortgage deed is accepted and it has been mentioned
that the said document cannot be said to be agreement to sale rather at
the most it can be said to be a mortgage deed of Rs.5 Lakhs.
12. From the reply it is also evident that the fact of the photocopy
of agreement to sale being prepared from the original by mechanical
process, which could have ensured the accuracy of the copy has also not
been denied rather it has been mentioned that since the mortgage deed
was for Rs.5 Lakhs 0.5% stamp duty was required to be paid and as it
is on stamp of Rs.1000/- as per the provisions of section 33, 35 of the
Stamp Act it cannot be admitted in evidence.
13. Since the provisions of section 63 (2) & (3) and 65 (c) of
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Indian Evidence Act can be said to be proved the said document could
very well be taken as secondary evidence on record. Thus, this court
finds that no illegality committed by the learned Trial Court in allowing
the application. The petition being sans merit and is hereby dismissed.
14. The judgment which has been cited by the learned counsel for
the petitioner being based on different facts is not applicable in the
facts of present case.
(MILIND RAMESH PHADKE)
JUDGE
(aspr)
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Signed by: ASHISH PAWAR
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