====================================================== Raj Lakshmi Kuer W/O Krishneshwarendra Shahi D/O Late Raj Kumar Raghubansh Mani Prasad v. 1
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.4283 of 2013 ====================================================== Raj Lakshmi Kuer W/O Krishneshwarendra Shahi D/O Late Raj Kumar Raghubansh Mani Prasad Narain Singh Resident Of Manjha House, Anandpuri, Near Boring Canal Road, P.S. Srikrishna Puri, District Patna. .... .... Petitioner/s Versus 1. Dr. Faiyaz Ahmad And Orsdr. Faiyaz Ahmad S/O Late Md. Salauddin Resident Of Mohalla New Karimganj, Police Station Civil Line, District Gaya. 2. Sita Ram Prasad Narayan Singh S/O Late Raghubansh Mani Prasad Narayan Singh Resident Of 15, Jamuna Apartment, Boring Road, P.S. Sri Krishnapuri, District Patna. 3. Bharat Prasad Narayan Singh S/O Late Raghubansh Mani Prasad Narayan Singh Resident Of 15, Jamuna Apartment, Boring Road, P.S. Sri Krishnapuri, District Patna. 4. Kaushlendra Prasad Narayan Singh S/O Dhakeshwar Pd. Narayan Singh @ Harihar Prasad Narayan Singh Resident Of 15, Jamuna Apartment, Boring Road, P.S. Sri Krishnapuri, District Patna. 5. Awadheshwari Prasad Narayan Singh S/O Late Raja Harihar Prasad Narayan Singh Resident Of Amawa House, Dak Bunglow Road, Police Station Kotwali, In The Town And District Of Patna. .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE VIKASH JAIN C.A.V. ORDER 6. 22.05.2013 The present petition has been filed for setting aside the order dated 23.01.2013 in T.S. No. 267 of 2009 (557/2008) passed by the learned Sub-Judge-7, Gaya, whereby and whereunder the learned Court below was pleased to allow the petition dated 6.12.2012 which was filed for exhibit of 7 certified copies of registered sale deeds
Legal Reasoning
by the plaintiff-respondent 1st set. 2. It appears that the plaintiff-respondent no.1 Patna High Court CWJC No.4283 of 2013 (6) dt.22-05-2013 2/5 filed T.S. No. 557/2008 for specific performance in connection with an agreement entered into with the defendant-petitioner for sale of 93 Katthas of land. It is stated that the defendant-petitioner received Rs. 1,58,86,831/- being the price of 70 Katthas 12 Dhurs of land but registered sale deeds were executed only for 27 Katthas 7 Dhurs of land. As the suit proceeded, the plaintiff-respondent no.1 on 6.12.2012 filed a petition bringing on record certified copies of 7 sale deeds as a list of documents for being exhibited. An objection petition was filed on behalf of the defendant-petitioner to the effect that the correctness and genuineness of the certified copies of the sale deeds were not admitted. It is in this backdrop of facts that the impugned order dated 23.01.2013 came to be passed against the defendant-petitioner, marking the certified copies of the 7 sale deeds as Exhibits 1 to 1/F in T.S. No. 267/2009 (557/2008). 3. Learned counsel for the defendant-petitioner invites attention to the objection petition filed before the learned Court in this regard, in para 3 whereof it has been clearly stated that “these defendants do not admit correctness or genuineness of the certified copies enumerated in para 1(i) to (vii) of the petition under objection”. It is thus submitted that the learned Court ought to have directed the plaintiff-respondent no.1 to call Patna High Court CWJC No.4283 of 2013 (6) dt.22-05-2013 3/5 for the original sale deeds from the respective purchasers or the records from the registry office in order to prove the certified copies of the sale deeds. It is further submitted that mere production of secondary evidence by way of certified copies without there being anything on record to show that the originals were lost or destroyed or could not otherwise be produced, ought not to have been entertained, particularly in the face of objection raised by the defendant petitioner whereby they had not admitted the correctness and genuineness of the certified copies. Reliance has been placed on the decisions reported in 1966 SC 1457 (Roman Catholic Mission Vs. The State of Madras) and AIR 2007 SC 1721 (J.Yashoda Vs. Shobha Rani). 4. Learned counsel for the plaintiff-respondent no.1, on the other hand submits that the impugned order has been validly passed and cannot be faulted. He relies on the provisions of Section 65(f) of the Indian Evidence Act, 1872 according to which secondary evidence may be given of the existence, condition or contents of a document “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”. 5. It is submitted that in view of Section 57(5) of the Registration Act, 1908 which provides that “all copies given under this Section shall be signed and sealed by the Patna High Court CWJC No.4283 of 2013 (6) dt.22-05-2013 4/5 Registering Officer, and shall be admissible for the purpose of proving the contents of the original documents.” It is thus contended that certified copies of the 7 sale deeds have rightly been allowed to be exhibited. 6. Learned counsel for the respondent no.1 has also taken a stand that the original sale deeds in question having been executed in favour of the various purchasers, the same are not in the possession of the plaintiff- respondent no.1 and as such secondary evidence in such circumstances was admissible. 7. Having heard the rival submissions of the parties and on going through the materials on record, this Court is in agreement with the submissions made on behalf of the plaintiff-respondent no.1. It would appear that the certified copies in question were sought to be marked as exhibits on the strength of the statutory provisions referred to above which has been allowed. Learned counsel for the defendant-petitioner, however, has not at all been able to demonstrate in what manner the impugned order has been passed contrary to the statutory provisions or otherwise suffers from any error of jurisdiction. Besides, the defendant-petitioner did not approach the learned Court with a petition for a direction to call for the original sale deeds or the relevant records from the registry office. The objection petition relied on by the defendant-petitioner, Patna High Court CWJC No.4283 of 2013 (6) dt.22-05-2013 5/5 except for the submission in that regard in para 3 whereof, does not contain any prayer for such direction. 8. The Hon’ble Apex Court has held in the decision relied upon by the defendant-petitioner that the secondary evidence, as a general rule, is admissible only in the absence of primary evidence when proper explanation of its absence is given. In the instant case it would appear that the certified copies of the 7 sale deeds were sought to be marked as Exhibits on the ground that the same were admitted documents as evident from the written statement filed on behalf of the defendant nos. 1 to 8. As observed in para 9 of Chandigarh Housing Board case (supra) the principle requiring production of primary evidence only means that “so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it”. This implies that original documents are required to be produced only if they are within the possession of the party concerned, which in the present case is denied. 9. In the above circumstances therefore the impugned order does not suffer from any infirmity requiring interference by this Court. The writ petition is devoid of merit and accordingly stands dismissed. Fahad. ( Vikash Jain, J. )