Judgment:
S.N. Hussain, J.
1. Heard learned counsel for the parties.
2. The petitioner is applicant in probate case No. 23/1995 which she had filed for probate of the Will dated 11.9.1972 claimed to have been executed by her father-in-law namely, Ramsurat Tiwary in the said case OP Nos. 10 to 12 appeared and contested claiming that no such Will was executed by Ramsurat Tiwary, who is fact, executed sale-deed dated 21.1.1971 in favour of Uma Shankar Prasad and others.
3. While the said case was pending, on the direction of the Court, Uma Shankar Prasad produced a photo-copy of the original sale-deed dated 21.1.1971 said to have been attested by Sub- Registrar, Shikarpur, Sub-Registry Office, whereafter OP Nos. 10 to 12 filed a petition in the trial Court for taking photograph of the signature of Ramsurat Tiwary over the Will dated 11.9.1972 filed by the plaintiff for comparing it with the signature of Ramsurat Tiwary in the photo-copy of the sale-deed dated 21.1.1971. The applicant objected to the said petition claiming that unless the original or the certified copy of the sale-deed is brought on record and/or unless the Registers of LTI and signatures are called for from the Registry Officer, no such comparison can be allowed on the basis of some document which is not admissible in law. However, the learned Additional District Judge-VI, Bettiah, West Champaran, by his impugned order dated 18.3.2002, allowed the petition of Opposite Parties in probate case No. 23/1995 and permitted them to take photograph of the signature of Ramsurat Tiwary from the Will and from the photo-copy of the sale-deed.
4. The said order of the learned Court below has been challenged by the applicant in this civil revision. The learned counsel for the petitioner contends that since opposite party Nos. 10 to 12 had neither filed any certified copy of the said sale-deed nor they had taken any step for calling for the records of the Registration Office to verify the signature of Ramsurat Tiwary, there was no occasion for the learned Court below to pass the impugned order specially when the certified copy of the sale-deed was not produced by the contesting opposite parties and further more, when the said deed was inadmissible in evidence, no value could be given to it by way of allowing comparison with the signature of Ramsurat Tiwary on the Will. Hence, according to him, the impugned order of the learned Court below was illegal, arbitrary and perverse.
5. On the other hand, the learned counsel for the opposite parties vehemently opposed the contention of the learned counsel for the petitioner and submits that there was no occasion for this Court to interfere with the impugned order as the lower Court has not decided the admissibility of the photo-copy of the sale-deed in evidence and moreover this is into the stage to interfere as the matter has to be finally decided in the trial of the case. He further contended that the learned Court below has just allowed the concerned opposite parties to take photographs of the two documents to verify the genuineness of the signatures of the executant Ramsurat Tiwary.
6. In support of his contention the learned counsel for the opposite parties relied upon a decision of the Apex Court reported in AIR 2000, SC 2629, Marwari Kumhar and Ors. v. Bhagwanpuri guru Ganeshpuri and Anr., paragraph 10 of which reads as follows :--
'Thus it is to be seen that under Sub-clause (c) of Section 65, where the original has been lost or destroyed, then secondary evidence of the contents of the document is admissible. Sub-clause (c) is independent of Sub-clause (f). Secondary evidence can be led, even if a public document, if the conditions as laid down under Sub-clause (c) are fulfilled. Thus if the original public document has been lost or destroyed then the secondary evidence can be given even of a public document. This is the law as has been laid down by this Court in Most. Bibi Aisha v. Bihar Subai Sunni Majlis Avaqaf, reported in AIR 1969 SC 253. In this case a suit had been filed for setting aside a registered mokarrari lease deed and for restoration of possession of properties. The suit had been filed on behalf of a Waqf. The original Waqf deed was lost and an ordinary copy of the Waqf deed was produced in evidence. The question was whether an ordinary copy was admissible in evidence and whether or not secondary evidence could be led of a public document, The Court held that under Section 65 Clauses (a) and (c) secondary evidence was admissible. It is held that a case may fall both under Clauses (a) or (c) and (f) in which case secondary evidence would be admissible. It was held that Clauses (a) and (c) were independent of Clause (f) and even an ordinary copy would, therefore, be admissible. As stated above the case that the original was no longer available in Court records and the certified copy was lost had not been disbelieved. Thus the ordinary copy of the earlier judgment was admissible in evidence and had been correctly marked as an exhibit by the trial Court.'
7. On the basis of the said decision of the Apex Court the learned counsel for the opposite parties contends that the plain copy of a document was admissible in evidence and had been correctly marked as an exhibit by the trial Court. Hence, according to him, there is no illegality in the impugned order and this civil revision should be dismissed. The learned counsel for the opposite parties further contends that after the amendment of Section 115 of the Code of Criminal Procedure as amended in 1999 and 2000, the scope of civil revision has been confined and unless the matter in issue finally decides the case, this Court should not interfere.
8. After hearing the learned counsel for the parties and after perusing the materials on record it is amply clear that three Judges' Bench of the Apex Court in the case of Sadhna. Lodh v. National Insurance Company Limited, reported in AIR 2003 SC 1561 and in the case of Hira Lal and Ors. v. State (Government of NCT Delhi), reported in 2003 (3) SCC 524, held that where remedy for filing civil revision before the. High Court under Section 115, CPC has not been expressly barred by any State enactment, the civil revision would be maintainable, if there is any error of jurisdiction in the order of the Court below.
9. So far the case law Marwari Kumhar and Ors., (supra), is concerned, it is amply clear that the Apex Court had passed the said order in the circumstances where the original had been lost and there was no occasion for getting the certified copy of a public document. But the matter is completely different as, although, the original is claimed to be lost but the same was not a public document and furthermore, the concerned opposite parties had full opportunity to obtain the certified copy of the sale-deed and also to pray for calling for the Registers from the Registry Office to ascertain/verify the correctness or genuineness of the signature of Ramsurat Tiwary on the Will. Hence, in the aforesaid circumstances the contesting opposite party Nos. 10 to 12, who had not produced any document with respect to the signatures of Ramsurat Tiwary either on the Will or on the sale-deed can not rely on a plain photo-copy of the sale-deed which is a very doubtful sort of paper, even if it contains attestation by the Sub-Registrar as claimed by the said opposite parties. In the aforesaid circumstances, the learned Court below had no jurisdiction at all to rely upon such a document and allow contesting opposite party Nos. 10 to 12 to get a photograph thereof and compare its signature with the signature on the Will which will no doubt give semblance of value to the said photo-copy for which, in my view, there was no occasion at all. However, this order will not debar the contesting opposite party Nos. 10 to 12 to file their own documents and this order will not affect the genuineness or otherwise of the documents produced by them.
10. In the aforesaid circumstances, this civil revision is allowed and the impugned order of the learned Court below is hereby set aside.