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IN THE HIGH COURT OF JHARKHAND AT RANCHI

C.M.P. No. 27 of 2022

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1. Muni Devi

2. Dhirendra Prasad Yadav

3. Anju Singh

4. Pushpa Devi

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Petitioners

Versus

1. Kamal Singh @ Kamal Prasad Singh

2. Ganesh Singh

3. Tarkeshwar Singh

4. Meghnath Singh

5. Nand Kishore Singh

6. Mithilesh Singh

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Respondents

7. Sri Yogeshwar Prasad

8. Sri Bhola Lal

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Proforma

Respondents

CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR

For the Petitioners : Mr. Lukesh Kumar, Advocate

Mr. Ramchander Sahu, Advocate

For the Respondents :

Order No. 03

Dated: 14.09.2022

The present C.M.P. has been filed for quashing/setting aside the order

dated 08.12.2021 (Anneuxre-7 to the writ petition) passed by the Civil Judge (Sr.

Division)-I, Dhanbad in Original Suit No. 78 of 2018 whereby the petition dated

07.09.2021 filed on behalf of the plaintiffs/petitioners under Sections 63 & 65 of

the Indian Evidence Act, 1872 (in short, “the Act, 1872”) for taking documents in

question as secondary evidence, has been rejected.

2.

Heard learned counsel for the petitioners and perused the content of the

C.M.P. including the impugned order dated 08.12.2021 passed by the Civil Judge

(Sr. Division)-I, Dhanbad in Original Suit No. 78 of 2018.

3.

It appears that the plaintiffs/petitioners produced photocopies of Khata No.-

02 and Khata No.-07 of Mouza Pipratand No. 91 as well as certificates dated

26.02.2020 and 09.09.2016 issued by the Record Room, Dhanbad Collectoriate

before the court below and sought to exhibit the same as secondary evidence.

4.

On perusal of copies of requisitions dated 20.02.2020 and 04.07.2016 for

obtaining certified copies of the said documents (annexed as Annexure-5 to the

present C.M.P.), it appears that the In-charge Officer of the District Record

Room, Dhanbad Collectoriate, Dhanbad has clearly mentioned on the back of the

same that since the “Khatiyan/Terij” of the concerned Thana and Khata are in

torn condition, it is not possible to issue certified copies of the said documents.

5.

Section 64 of the Act, 1872 provides that documents must be proved by

primary evidence except in the cases mentioned in Section 65 wherein some

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conditions have been provided under which secondary evidence relating to

documents may be given. In view of Section 65 (c), the secondary evidence is

admissible 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 a reasonable time. Section 63 provides

about the documents which shall mean and include as secondary evidence. In

illustration (a) of the said Section, it has been clarified that a photocopy of an

original is secondary evidence of its content, though both have not been

compared, if it is proved that the document photocopied was the original.

6.

In the case in hand, though the petitioners produced photocopies of Khata

No.-02 and Khata No.-07 of Mouza Pipratand No. 91 and prayed before the trial

court for taking those as secondary evidence, however failed to show that the

said photocopied documents were the original which is condition precedent for

taking it as secondary evidence. Since the certified copy of the said documents

could not be provided by the District Record Room, Dhanbad Collectoriate, the

petitioners are not entitled to claim for adducing photocopy of the said

documents as secondary evidence. A document is admissible as secondary

evidence only when the same satisfies any of the conditions mentioned in

Section 63 of the Act, 1872 and not otherwise. Moreover, the petitioners failed to

show before the trial court as to under what circumstance, the photocopies of

the said documents were prepared. In the said circumstance, the aforesaid

documents sought to be exhibited on behalf of the plaintiffs/