The main legal point established in the judgment is the importance of proving the accuracy and authenticity of photocopies as secondary evidence under section 65 of the Indian Evidence Act.

Vivek Rusia, J.

Petitioner has filed the present petition being aggrieved by the order dated 08.01.2016 by which the application under sections 65 & 66 of the Indian Evidence Act was rejected.

2. Petitioner/plaintiff being the real sister of respondent No.1 filed a suit for declaration and permanent injunction in respect of plot bearing survey No.213/2, Gram Panchayat, Jetpura, district Dhar. The suit was filed on the ground that the suit property was allotted by the Gram Panchayat, Jetpura to petitioner's mother Smt. Ramkunvarbai and she has constructed a house thereon and later on the same was bequeathed to the petitioner by way of Will.

3. Respondents/defendants filed written statement and stated that the plot in question was in fact allotted to him by the Gram Panchayat, therefore, mother had no right to execute the Will in favour of the plaintiff.

4. During the course of evidence plaintiff filed an application under section 65 & 66 of the Indian Evidence Act seeking permission of the trial Court to lead secondary evidence in respect of lease deed in favour of her mother on the ground that the original record in respect of lease is not traceable in the office of the Gram Panchayat. The said application was opposed by the defendants. Learned trial Judge vide order dated 08.01.2016 has rejected the application, hence the present petition. Learned Civil Judge has rejected the application on the ground that neither it was certified copy of the original nor prepared mechanically from the original.

5. I have heard learned counsel for the parties.

6. That the petitioner/plaintiff has not filed the application for taking the document on record but specifically filed an application under section 65 of the Evidence Act that the photocopy be admitted in evidence as secondary evidence, therefore, learned trial Court has considered the said application under the provisions of Section 65 of the Evidence Act. This Court in the case of Rashid Khan s/o Yasin Khan Musalman and another reported in 2011(3) MPLJ 575 has specifically considered in detail whether the photocopy can be accepted as secondary evidence. In another case of Smt. Aneeta Rajpoot v. Smt. Saraswati Gupta passed in W.P.No.11990/2012 decided on 16.08.2012 High Court has considered the scope of section 65 of the Indian Evidence Act in detail and held that the photocopy is not admissible as secondary evidence. Para - 11, 12, 13 7 14 of the said judgment is reproduced below:

11. Learned counsel for petitioner/defendant rightly submitted that secondary evidence would include categories mentioned in Clauses (1) to (5) to Section 63. Learned counsel further rightly submitted that if conditions embodied in Section 65(a) and (b) of the Evidence Act exist, secondary evidence relating to document can be given. In support of (6) W.P. No.11990/2012 his forceful submissions, learned counsel has placed reliance on two decisions of Supreme Court Nawab Singh (supra) and Smt. J. Yashoda (supra) and also of learned Single Bench of Rajasthan High Court Smt. Ratan Sharma (supra). But, to me, even then in the facts and circumstances of the present case the photocopy of the document of receipt cannot be admitted in secondary evidence. On bare perusal of the application under Section 65 of the Evidence Act which has been rejected by the impugned order it is found that although it has been mentioned that under the false pretext the plaintiff and her husband obtained the original receipt from petitioner/defendant, but, nowhere it has been so stated in the application that the photocopy was made from the original and it was compared with original. The name of the person, who had obtained the photocopy by mechanical process has also not been mentioned in the application and further who compared the same with original his name is also not mentioned nor any affidavit in that regard has been filed.

12. So far as the applicability of Clause (2) of Section 63 Evidence Act placed reliance by the learned coun