Sanjay Sahgal v. Shradha Kashikar And Others

The instant petition filed under Article 227 of the Constitution of India takes an exception to the order dated 24-10-2017 passed by 11th Additional District and Sessions Judge, Bhopal in Civil Suit No. 409- A/2010, whereby the application under section 65 of the Indian Evidence Act, 1872 (hereinafter referred to as “Act”) filed by the petitioner has been rejected.

2. Brief facts of the case succinctly, are that the petitioner entered into an agreement to sale with the respondent No. 1 on 30-8-2007 for purchase of total area of land of two khasras admeasuring 4.68 acres. In pursuance to the same, it is pleaded that the petitioner had deposited a sum of Rs 20,00,000/- with the respondent No. 1 through cash and cheque. The petitioner filed a Civil Suit on 13-9-2010 for Declaration, Specific Performance of Contract and Permanent Injunction against the respondents. During the trial, he filed an application under section 65 of the Act on 16-8-2017 to admit the photo copy of the agreement as ‘secondary evidence’. By the impugned order, the said application has been rejected, on the ground that the petitioner has not mentioned in the plaint filed for Specific Performance of Contract about the possession of the document in question i.e. agreement dated 30-8-2007 and it was also not mentioned that the document was lost.

3. Learned counsel for the petitioner submitted that the learned trial Court has failed to appreciate the affidavit dated 13-9-2017 filed by the respondent No. 1 wherein, very categorically it has been mentioned that at the time of execution of the agreement dated 30-8-2007, the respondent No. 1 was present along with her father and in front of her, the said agreement was signed between the respondent No. 1 and the present petitioner. He further submits that, thus the execution of the agreement has been admitted, therefore, the petitioner can also prove the conditions of the agreement by adducing ‘secondary evidence’.

4. Learned counsel for caveator/respondent No. 1 supported the impugned order and submitted that in the entire plaint which is a suit for Specific Performance in pursuant to the agreement dated 30-8-2007, there is no pleading about the possession of the agreement in the plaint that either the agreement is lost or destroyed.

5. To appreciate the rival submission of learned counsel for the parties it is apposite to refer the provisions of section 65 of the Indian Evidence Act, which is reproduced herein:

“65. Cases in which secondary evidence relating to documents may be given.— Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:—

(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 cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. In case (b), the written admission is admissible.

In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.

In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.”

6. During the course of the arguments, learned counsel for the petitioner submitted that his case would fall under sub-clause (b) of section 65 of the Act. It is contended that the respondents have admitted the existence and the conditions of the original.

7. Learned counsel for the caveator/respondent No. 1 relied upon the judgment passed by the Apex Court in the case of H. Siddiqui v. A. Ramalingum, 2011 (3) M.P.L.J. (S.C.) 83 : (2011) 4 SCC 240 and the judgment passed by this Court in the case of Rashid Khan v. State of M.P., 2011 (3) M.P.L.J. 575. He further submitted that there is no illegality in the order impugned as the petitioner could not establish the requirements of section 65 of the Act to adduce the secondary evidence.

8. The relevant part of the affidavit of the respondent relied by the petitioner reads as under:

9. From reading the aforesaid affidavit it cannot be construed that the contents of the affidavit has been admitted by the respondents and the possession of the agreement with the respondents has also not been admitted.

10. The suit was filed in the year, 2010. The application for permission to adduce secondary evidence of agreement was filed in the month of August, 2017 after about 7 years. There is no whisper about the possession of the original copy of the agreement. The plaintiff has not stated that the original copy of the agreement has been destroyed or lost. Since from the pleadings it has not been established that the primary evidence is not available as required under section 64 of the Evidence Act, then the permission to adduce evidence through secondary evidence is not available. In this context I may profitably placed reliance on the decision of the Supreme Court in the case of Tukaram S. Dighole v. Manikrao Shivaji Kokate, 2010 MPLJ Online (S.C.) 26 : (2010) 4 SCC 329 : AIR 2010 SC 965. Para-17 of the aforesaid judgment is quoted as under:

“17. Chapter V of the Evidence Act deals with documentary evidence. Section 61 thereof lays down that the contents of documents may be proved either by primary or by secondary evidence. As per section 62 of the Evidence Act, primary evidence means the document itself produced for the inspection of the Court. Section 63 categories five kinds of secondary evidence. Section 64 lays down that documents must be proved by primary evidence except in the cases mentioned in the following sections. To put the matter briefly, the general rule is that secondary evidence is not admissible until the non-production of primary evidence is satisfactorily proved. However, clause (e) of section 65, which enumerates the cases in which secondary evidence relating to documents may be given, carves out an exception to the extent that when the original document is a “public document” secondary evidence is admissible even though the original document is still in existence and available. Section 74 of the Evidence Act defines what are known as “public documents”. As per section 75 of the Evidence Act, all documents other than those stated in section 74 are private documents. There is no dispute that certified copy of a document issued by the Election Commission would be a public document.”

11. Other contention of the petitioner that the existence of the agreement has been admitted by the respondents and his case would fall under Sub-clause (b) of section 65 of the Act has no merit which requires that if the existence and conditions or contents of the original is admitted then the secondary evidence can be adduced. Than both requirements existence and conditions or contents should be admitted by the other side, then only ‘secondary evidence’ of that document can be permitted.

12. In the case of H. Siddiqui (supra) it is held that, admitting signatures in photo-copy of the documents does not amounts to admitting the contents of the documents.

13. In the conspection of the above discussion and taking into consideration the law as discussed hereinabove, I do not find any illegality warranting any interference with the order impugned under Article 227 of the Constitution of India.

14. Even otherwise, it is settled law that jurisdiction under Article 227 of the Constitution of India cannot be exercised to correct all errors of subordinate Courts within its limitation. It can be exercised where the order is passed in grave dereliction of duty and flagrant abuse of the fundamental principle of law and justice [See. Jai Singh v. MCD, (2010) 9 SCC 385 and Shalini Shetty v. Rajendra S. Patil, 2010 (4) M.P.L.J (S.C.) 590 : (2010) 8 SCC 329].

15. Further, a Co-ordinate Bench of this Court in the case of Ashutosh Dubey v. Tilak Grih Nirman Sahakari Samiti Maryadit, Bhopal, 2004 (3) M.P.L.J. 213 : 2004 (2) MPHT 14 held that supervisory jurisdiction under Article 227 of the Constitution of India is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When a subordinate Court has assumed a jurisdiction which it does not have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied - (i) the error is manifest and apparent on the fact of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law; and (ii) a grave injustice or gross failure of justice has occasioned thereby.

16. In view of the aforesaid enunciation of law, the instant petition is devoid of merit and is hereby dismissed. The order impugned in the present writ petition passed by the Court below is upheld.

Petition dismissed.