The main legal point established in the judgment is the mandatory nature of Section 65-B(4) of the Indian Evidence Act, 1872, and the procedure for obtaining a certificate to ensure the source and authenticity of electronic records.

JUDGMENT :

1. Rule. Rule is made returnable forthwith. By consent of the learned Counsel for the parties, writ petition is heard finally.

2. By this Writ Petition filed under Article 227 of the Constitution of India, the Petitioner is challenging the order dated 30 April 2022 passed by the Small Causes Court, Mumbai below Exh. 453 in L.E. Suit No. 71/85 of 2012 (the “said suit”), rejecting the said application being Exh. 453 made by the Petitioner for calling upon the Income Tax Department to provide a proper certificate/letter in support of the Income Tax records of late Prakash Ahuja, the late husband and father of the Respondents and on receiving such certificate mark the documents under the list at Exh. 313 being the Income Tax records of late Shri Prakash Ahuja in evidence.

3. Mr. Karl Tamboli, learned Counsel for the Petitioner draws the attention of this Court to the application under Exh. 453 and submits that this application was necessitated in as much as the Trial Court by an order dated 13 January 2022, while marking the Income Tax records of the Respondents No. 1 to 3 filed below letter at Exhs. 345, 441 and 442 in evidence, refused to do so with respect to the Income Tax records of late Shri Prakash Ahuja being the documents below list at Exh. 313 as it was observed that the photocopies of the Income Tax records were without a certificate from the Income Tax Department.

4. Learned Counsel for the Petitioner would submit that in view of the decision of the Hon’ble Supreme Court in the case of Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal and Ors., (2020) 7 SCC 1, when documents are produced by authorities, in order to ensure the source and authenticity of the said documents, it is not only mandatory to obtain a certificate under Section 65-B (4) of the Indian Evidence Act, 1872, but despite efforts, if the person seeking such a certificate is unable to do so, he can apply to the Court for its production and the judge conducting the trial must summon the persons referred to in Section 65-B(4) of the Evidence Act and require that such certificate be given by such person/persons. Drawing attention to paragraph 4 of the said application, learned Counsel would submit that despite all efforts made by the Petitioner to procure the certificate under Section 65-B of the Evidence Act, left with no choice the Petitioner preferred the application under Exh. 453, which has been rejected by the Trial Court inter alia on the ground that the Petitioner had neither moved an application on his own account for getting the certificate directly from the concerned department, nor filed an application before the Court for issuance of directions to the concerned department for submitting the certificate before passing an order of admissibility of documents filed below list Exh.313. Learned Counsel would submit that this finding itself ex-facie exhibits complete non application of mind on the part of the Trial Court. It is submitted that pursuant to an application seeking issuance of witness summons to the Income Tax Department to produce Income Tax and Wealth Tax Return of late Mr. Prakash Ahuja from the year 1972 to 2005 and of the Respondents No. 1 to 3 from the year 2005 till the date of the application, the Trial Court had issued witness summons to the Principal Commissioner of Income Tax-21, to depute an authorised person to produce the said document, however, the Income Tax Officer-1(2)(1), who was deployed by the Income Tax Department to produce copies of the Income Tax records of late Mr. Prakash Ahuja before the Trial Court, failed to provide the certification from the Income Tax Department along with the said documents certifying the same. And even though the prayer clause in the application under Exh. 453 clearly makes a prayer to the Trial Court to call upon the Income Tax Department to provide a proper certificate/letter in support of the Income Tax records of late Mr. Prakash Ahuja, the Trial Court has clearly erred in