ORDER

1. This Miscellaneous Petition under Article 227 of the Constitution of India has been preferred challenging the order dated 19.10.2023 by 22nd District Judge, Indore in EP No.4 of 2022 whereby the determination of petitioner's objection regarding admissibility of certificate purported to be issued by one Mohd. Ahmad under Section 65-B of Indian Evidence Act, 1872 marked as Exhibit P/24 has been postponed till the final disposal of case.

2. Brief facts of the case are that petitioner was elected as Counsellor of Ward No.60 of Indore Municipal Corporation in public election conducted on 6.7.2022. An election petition challenging the election of petitioner was filed which is pending before the 22nd District Judge, Indore as EP No.4 of 2022.

3. During the course of evidence of respondent No.1(PW-1), proposed certificate issued by one Mohd. Ahmad under Section 65-B of Indian Evidence Act was objected by the petitioner stating that the proposed certificate is not original document but photocopy, so it cannot be admitted as a valid evidence.

4. Objecting to the contentions of petitioner counsel for respondent No.1 urged that the proposed document is original which bears the signatures of Mohd. Ahmad in black ink as well as bears his mobile number.

5. Trial Court allowed the respondent No.1 to exhibit the document as Exhibit-P/24 holding that the respondent No.1 claims the document to be original and the issue of documents being original or photocopy will be decided at the time of disposal of the matter on merit.

6. Counsel for the petitioner challenged the impugned order on the ground that the admissibility is to be decided at the time of raising such objection otherwise right of petitioner for cross-examination of such documents would be prejudiced, therefore, the impugned order is not sustainable and deserves to be quashed. The learned trial Court (Election Tribunal) has committed serious error of law in not taking into consideration the settled position of law that certificate under Section 65-B is certify the secondary evidence and if photocopy is permitted then it would be a secondary evidence of a secondary evidence which is not permissible under the Indian Evidence Act, 1872. Also, considering the facts that the admissibility of Exhibit-P/24 has to be decided at the time of admitting the document, because such kind of objection cannot be permitted to raise after admitting the documents therefore, decision thereupon cannot be postponed. Order 23 rule 3 of the CPC specifically provides endorsement of the documents after admitted in evidence in the suit but in the present case the learned trial Court without admitting Annexure P/3, in evidence permitted to endorse as Exhibit-P/4 is contrary to law and suffered with serious perversity and illegality hence, impugned order passed on deposition sheet is not sustainable.

7. Learned counsel for the petitioner has relied upon the case of "R.V.E Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P Temple and Another (2003)8 SCC 752" and "Hemendra Rasiklal Ghia, etc, v. Subodh Mody, etc. 2008(5) CTC 577". Relevant para 20 of the judgment in "R.V.E Venkatacrhala Gounder v. Arulmigu Vishwesaraswami & V.P Temple and Another (2003)8 SCC 752" is as follows:-

"The learned counsel for the defendant-respondent has relied on Roman Catholic Mission v. State of Madras in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do no have any dispute with the proposition of law so laid down in the abovesaid case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of the documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence