Learned counsel for the petitioner submits that the plaintiff's application for direction to the defendants to produce the original was rejected by the trial Court and in the premises, the impugned orders for production of secondary evidence and marking of the xerox copy could not have been passed. The application for production of the original was rejected on the basis that the plaintiff had an option to follow the other provisions of the Evidence Act to prove the document. One of the provisions to be followed was Clause (a) of Section 65. The plaintiff, accordingly, applied for production of secondary evidence after issuing a notice under Section 66. The plaintiff has deposed in his oral evidence that the document has been in possession or power of defendant No. 1. The order of the Court allowing secondary evidence does not suffer from any infirmity on that account. After all, the existence of the document itself is not denied by the defendant at this stage. Learned counsel for the petitioner relies on the judgment of our Court in the case of Prakash Gurudas Timblo and Others vs. Hemlatabai Ravikant Darne and Others, reported in MANU/MH/1117/2016 : 2016 (5) Mh.L.J. 320 : [2016 (4) ALL MR 913], to claim that the Court must be first satisfied about the existence of the original before an order permitting secondary evidence of it is passed. The opinion to be formed by the Court, as observed in Prakash Gurudas Timblo, is merely a prima facie opinion. Whether the original actually exists is a matter of trial. At the stage of admission of evidence, it is sufficient for the Court to form a prima facie opinion that the original exists and that opinion the trial Court in the present case can certainly be said to have formed.
5. The document thus appearing to be in existence and in possession or power of defendant No. 1, in the light of the provisions of Section 65 of the Evidence Act, permission to adduce secondary evidence could well be granted. No fault can be found with this order. The order permitting secondary evidence, besides, as observed above, does not prejudice the petitioner in questioning the very existence of the original or the efficacy of the secondary evidence to prove its execution. There is, thus, no merit in the challenge to the order dated 8th July, 2015 permitting secondary evidence. The order permitting xerox copy of the partition deed passed on 7th July, 2017 is merely consequential upon the order permitting secondary evidence of the document.
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Writ Petition No. 5738 of 2017
Decided On: 07.09.2017
Satish Vs. Pramod and Ors.
Hon'ble Judges/Coram:
S.C. Gupte, J.
Citation: 2017(6) MHLJ 711
2. The suit is for (i) declaration that an alleged will set up by the petitioner (Original defendant No. 1) is sham and bogus and (ii) perpetual injunction restraining the defendants from creating third party interest in the suit property on the basis of the alleged will. By an application for amendment, the plaintiff introduced a plea in his plaint that the suit property was partitioned between the parties by a deed executed on 21st May, 2011. This amendment has been accepted by defendant No. 1 and has since become final. It is the plaintiff's case that this partition deed is in possession of defendant No. 1 and refused to be produced by him despite notice to produce it. The plaintiff, in the premises, applied for leave to produce secondary evidence of the partition deed. That application was allowed by the trial Court by its order dated 8th July, 2015. When a xerox copy of the partition deed was sought to be produced in pursuance of this order, an objection was raised by defendant No. 1 to the marking of the xerox copy. That objection was overruled by the trial Court by its order dated 7th July, 2017 and the xerox copy of the partition deed was exhibited as a document. Both these orders are challenged in the present petition.
3. Clause (a) of Section 65 of the Evidence Act, 1872 permits secondary evidence to be given of a document 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 and when despite notice under Section 66, such person does not produce it. Admittedly, the original is sought to be proved in the present case against defendant No. 1 and a notice under Section 66 to produce the same was issued to him on the ground that the document was in his possession or power. The defendant denied such possession or power, and, in the premises, the Court passed the impugned orders.
4. Learned counsel for the petitioner submits that the plaintiff's application for direction to the defendants to produce the original was rejected by the trial Court and in the premises, the impugned orders for production of secondary evidence and marking of the xerox copy could not have been passed. The application for production of the original was rejected on the basis that the plaintiff had an option to follow the other provisions of the Evidence Act to prove the document. One of the provisions to be followed was Clause (a) of Section 65. The plaintiff, accordingly, applied for production of secondary evidence after issuing a notice under Section 66. The plaintiff has deposed in his oral evidence that the document has been in possession or power of defendant No. 1. The order of the Court allowing secondary evidence does not suffer from any infirmity on that account. After all, the existence of the document itself is not denied by the defendant at this stage. Learned counsel for the petitioner relies on the judgment of our Court in the case of Prakash Gurudas Timblo and Others vs. Hemlatabai Ravikant Darne and Others, reported in MANU/MH/1117/2016 : 2016 (5) Mh.L.J. 320 : [2016 (4) ALL MR 913], to claim that the Court must be first satisfied about the existence of the original before an order permitting secondary evidence of it is passed. The opinion to be formed by the Court, as observed in Prakash Gurudas Timblo, is merely a prima facie opinion. Whether the original actually exists is a matter of trial. At the stage of admission of evidence, it is sufficient for the Court to form a prima facie opinion that the original exists and that opinion the trial Court in the present case can certainly be said to have formed.
5. The document thus appearing to be in existence and in possession or power of defendant No. 1, in the light of the provisions of Section 65 of the Evidence Act, permission to adduce secondary evidence could well be granted. No fault can be found with this order. The order permitting secondary evidence, besides, as observed above, does not prejudice the petitioner in questioning the very existence of the original or the efficacy of the secondary evidence to prove its execution. There is, thus, no merit in the challenge to the order dated 8th July, 2015 permitting secondary evidence. The order permitting xerox copy of the partition deed passed on 7th July, 2017 is merely consequential upon the order permitting secondary evidence of the document.
6. In the premises, the impugned orders do not call for any interference in the writ jurisdiction of this Court. The writ petition is dismissed. It is made clear that the observations made in this order are merely for disposing of the writ petition and shall not influence the trial Court in deciding the suit one way or the other. It is also made clear that the petitioner will be entitled to question the existence of the original or the efficacy of the secondary evidence in proving it on all grounds open to him in law at the trial of the suit.
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