Respondents/Plaintiffs had filed the suit for declaration, permanent injunction and cancellation of ‘Hibanama’ (gift under Muslim law) against the present Petitioners with regards to land in Village Sutarkhedi, Tehsil Mhow, District Indore. The suit property was initially owned by Ismail and the Plaintiffs are claiming their right and title over the suit property by virtue of succession.
The suit property has been changed in the name of Defendants by virtue of oral ‘Hiba’ (gift under Muslim law), which gave the cause of action to the Plaintiffs for filing the suit challenging the ‘Hiba’. The Plaintiffs filed the suit on 15.2.2018. After receipt of the summons, the Defendants appeared and filed the written statement on 11.7.2018. Along with the written statement, the Defendants had filed an original executed affidavit of Ismail with respect to ‘Hiba’ and photocopy of another affidavit of Ismail bearing Notary No.133/2007 dated 19.6.2007.
The Plaintiffs, after filing of a photocopy of the affidavit of Ismail along with the written statement by Defendants, immediately filed the application under Order 7 Rule 12 of C.P.C. seeking production of the original of the said affidavit by the Defendants. The Defendants filed an affidavit on 26.2.2020 that the original document is not in their possession. Afterwards, the Plaintiffs filed another application u/s. 63 & 65 of the Indian Evidence Act seeking permission to prove the affidavit of Ismail to be secondary evidence.
This application was opposed by the Defendants because the property mentioned in the said affidavit are different and not related to the suit property. Court order on 28.2.2020 has allowed the application by referring to Supreme Court judgment of J. Yashoda vs. K. Shobharani (2007) 5 SCC 730.
The Petitioner’s counsel (Shri Jitendra Verma) submitted that the court has failed to examine the provisions of Section 63 of the Indian Evidence Act. He claimed that the photocopy of the document is neither primary nor secondary evidence.
Under Section 63 of the Indian Evidence Act, before seeking permission to tender the document as secondary evidence, the parties must satisfy the conditions mentioned subsections (1) to (5).
He contended that in the entire application nothing has been mentioned that from the original by the mechanical process is accurate copy and compared with the original, and in absence of such pleading, the trial Court has wrongly allowed the application.
The Respondent’s counsel (Shri Sanjay Sharma) submitted that before allowing the application, the Court has obtained the affidavit from the Defendants that they do not have an original copy of the document. The photocopy of the document (affidavit of Ismail) was filed by the Defendants along with the written statement.
As they failed to produce the original of the same, he alleged that the trial Court has not committed any error while allowing the application under section 63 & 65 of the Indian Evidence Act and the interference by this Court under Article 227 of the Constitution of India is not permissible.
In this case, the Plaintiffs applied Section 63 & 65 of Indian Evidence seeking permission to tender photocopy of the affidavit of Ismail as secondary evidence. The photocopy of the said affidavit was filed by the Defendants along with the written statement. The Plaintiffs after receipt of a copy of the same immediately filed an application seeking production of the original copy of the document from the Defendants.
The Defendants have denied possession of the original document. The Plaintiffs filed another application u/s. 63 & 65 of the Indian Evidence Act seeking permission to prove the document as secondary evidence. Learned trial Court has allowed the application because the original of the document has not been produced.
The affidavit of Ismail came from the Defendants’ side, therefore, it was for them to explain as to from where the photocopy of the same came in their possession. The Defendants are opposing the application only on the ground that the said affidavit is in respect of property other than the suit property. This issue can be decided based on evidence as to whether the affidavit is relevant or not.
At this stage, the court has only granted permission to tender the photocopy of the affidavit as secondary evidence which was filed by the Defendants themselves. Therefore, in the opinion of this Court, the trial court has not committed any mistake while allowing the application especially when before allowing the application, Defendants filed the affidavit that the document is not in their possession and photocopy of the document was filed by themselves.
The Supreme Court in Narbada Devi Gupta vs Birendra Kumar Jaiswal (2003) 8 SCC 745 has held that mere production and marking of a document as exhibit by the Court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence.
In the case of Life Insurance Corporation of India vs Ram Pal Singh Bisen (2010) 4 SCC 491, the Supreme Court has again held that mere making of an exhibit on a document does not dispense with its proof, which is required to be done in accordance with the law.
Similar view has been followed in the case of Rakesh Mohindra vs Anita Beri (2016) 16 SCC 483. The Supreme Court had further held that if a party wishes to lead secondary evidence, the Court is obliged to examine the probative value of the document produced in the Court or their contents and decide the question of admissibility of a document in secondary evidence. The party had to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. Paras 22, 23, 24, 24 and 26 of the judgment were referred to in court.
According to the order given by Justice Vivek Rusia, the petition by Defendants is dismissed. The Defendants are not entitled to the land as the document provided by them is a duplicate and therefore considered secondary evidence.
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