The main legal point established in the judgment is the strict interpretation and application of the provisions of Section 63 and Section 65 of the Indian Evidence Act, 1872, regarding the admissibility of secondary evidence.

Sanjay Yadav, J.

1. With consent of learned counsel for the parties the matter is heard finally.

2. This petition under Article 227 of the Constitution of India, at the instance of plaintiff is directed against the order dated 17.7.2012 passed in Civil Suit No. 390-A/2007; whereby the Trial Court has allowed the respondents/defendants to lead secondary evidence through the xerox copy of affidavit dated 28.5.1995 and will dated 20.6.1997.

3. The suit at the instance of the petitioner/plaintiff is for declaration, partition, separate possession, mesne profit and permanent injunction. Respondents/defendant Nos. 2, 5 and 6 filed written statement. Whereas, respondent No. 2 has filed a counter claim.

4. That, an application under Section 65 of the Indian Evidence Act, 1872 came to be filed by respondent Nos. 3, 4 and 7 seeking leave of the Court to prove photo-copies of joint affidavit dated 28.5.1995 and photocopy of will dated 20.6.1997 as secondary evidence. The application was supported by affidavits filed by respondents. The petitioner/plaintiff objected to the same. The Trial Court, however, by impugned order allowed the application for the following reasons:

^^tgka rd Nk;k izfr;ksa dks f}rh;d lk{; ds :i esa xzkg~; fd;s tkus iz'u gS] bl laca/k esa izfroknhx.k ds fo}ku vf/koDrk dk dguk gS fd ftu nLrkostksa dh Nk;k izfr;ka izdj.k esa izLrqr dh gS] os mlds firk us vius thoudky esa fu"ikfnr fd, Fks vkSj bu nLrkostksa dh Nk;k izfr;ka bUgsa buds firk us gh miyC/k djkbZ Fkh] fdUrq firk ds vpkud e`R;q gks tkus ls bUgsa vly nLrkost ds ckjs esa irk ugha gSa fd og fdlds vkf/kiR; esa gS] mDr ifjfLFkfr;ksa esa ;g U;k;ky; 'kiFk i= fnukafdr 28-05-1995 ,oa olh;rukek fnukafdr 20-06-1997 f}rh;d lk{; ds :i esa xzkg~; djus dh vuqefr fn;k tkuk ;g U;k;ky; mfpr le>rk gS] tgkWa rd nLrkostksa ds dwVjfpr ,oa QthZ gksus dk iz'u gS ;g lk{; ds izdze ij gh fu/kkZfjr gksuk laHko gSA vr% ckn fopkj izfroknh dzekad 3] 4 o 7 dh vksj ls izLrqr vkosnu i= varxZr /kkjk 65 lk{; vf/kfu;e fnukafdr 04-04-2012 Lohdkj fd;k tkdj 'kiFk i= fnukafdr 28-05-1995 ,oa olh;rukek fnukafdr 20-06-1997 dh Nk;k izfr;ka vfHkys[k ij yh tkrh gSA**

5. Whereas, the petitioner has questioned the impugned order on the anvil of the provisions contained under Section 63 (2) read with Section 65 (c) of the Indian Evidence Act and the decision in United India Insurance Co. Ltd. vs. Ambari and Others, (2000) 10 SCC 523, Ramesh Verma and Others vs. Smt. Lajesh Saxena and Others, AIR 1998 MP 46, Ratanlal vs. Kishanlal, 2012 (1) MPLJ 120, Gwalior Development Authority vs. Dushyant Sharma, 2013 (II) MPWN 53 and Aneeta Rajput vs. Saraswati Gupta, ILR (2013) MP 43 to bring home the submission that unless the photocopy is established to have been prepared after compared from the original and duly compared therewith the same cannot be accepted by way of secondary evidence.

6. Respondents on their turn refuted the contentions raised on behalf of the petitioner and while relying upon the decision rendered by the Supreme Court in Nawab Singh vs. Inderjit Kaur, (1999) 4 SCC 413, Marwari Kumhar and Others vs. Bhagwanpuri Guru Ganeshpuri and Another, (2006) 6 SCC 735 and Smt. Aneeta Rajput vs. Smt. Sarswati Gupta, 2012 (5) MPHT 381 has to submit that there is no thumb rule that the photocopy of a document cannot be admitted as a secondary evidence.

7. Considered the rival submissions.

8. Section 63, Indian Evidence Act, 1872 defines secondary evidence to mean and include (1) Certified copies given under the provisions hereinafter contained; (2) Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies; (3) Copies made from or compared with the original; (4) Counterparts of documents as against the parties who did not execute them; and (5) Oral accounts of the contents of a document given by some person who has himself seen it.

9. Sub-section (2) of Section 63 which is relevant in the case at hand specifies that, copies made f