Judgment:
WP No.4700.12 Writ Petition No.4700 of 2012 (Smt.
Leela Bai and another versus Smt.
Halki Bai and four otheRs.13-03-2013 Shri V.K.Laharia, learned counsel for the petitioneRs.Shri Atul Nema, learned counsel for the respondent No.1.
Shri Raman Patel, learned senior counsel for respondent No.2.
Shri Samdarshi Tiwari, learned counsel for the respondent No.5.
Heard.
Order dated 02-11-2011 passed by Civil Judge Class-I, Patan in Civil Suit No.22-A/2010 is being assailed vide this petition under Article 227 of the Constitution of India; whereby, respondent No.1/plaintiff has been allowed to lead secondary evidence on the strength of xerox copy of partition deed dated 29-07-1997.
Suit by respondent No.1 is for declaration and partition based on the partition deed dated 29-07-1997.
The petitioneRs.defendants have denied the existence of partition deed dated 29-07-1997 in paragraph 3 of their written statement.
The respondent No.1/plaintiff as apparent from record, is not in possession of original partition deed.
Instead of taking recouRs.to interrogatory, the respondent No.1/plaintiff filed an application to lead secondary evidence on the basis of the xerox copy of alleged partition deed.
The trial Court ignoring the specific denial of the execution of the said partition deed and without taking recouRs.leading the respondent No.1/plaintiff to fiRs.discharge the burden of proving the existence of partition deed in question, allowed the plaintiff to WP No.4700.12 lead secondary evidence on the basis of xerox copy which when tested on the anvil of section 64 and 65 of the Indian Evidence Act, 1872 (for short 'Act of 1872') does not stand the scrutiny.
Section 64 of the Act of 1872 mandates that the document must be proved by primary evidence.
Exceptions, however, are carved out in clause (a) to (g) under section 65 which stipulates that secondary evidence may be given of the existence, condition, or contents of a document (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 to be easily movable; (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 consists 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.
In the case at hand the respondent No.1 has failed to prove any of the eventuality exceptionable under section 65 of the Act of 1872.
The impugned order when tested on the WP No.4700.12 touchstone of aforesaid provisions and there being dearth of cogent material on record to satisfy the existence of exceptions carved out under section 65 of the Act of 1872 does not stand the scrutiny.
In view whereof the impugned order deserves to be and is hereby quashed.
Petition is allowed to the extent above.
No costs.
(SANJAY YADAV) JUDGE sc