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2022 Supreme(Online)(MP) 2118
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 29th OF SEPTEMBER, 2022
MISC. PETITION No. 606 of 2022
BETWEEN:-
1.
SMT.JAMUNA BAI (DEAD) THROUGH L.RS.
ASHOK PATEL S/O LATE RAMCHARAN PATEL,
AGED
ABOUT
60
YEARS, OCCUPATION:
UNEMPLOYED
804,
AGRA
W
AL
COLONY
,
JABALPUR (MADHYA PRADESH)
2.
MUKESH
KUMAR
PATEL
S/O
LATE
RAMCHARAN PATEL, AGED ABOUT 64 YEARS,
OCCUPATION:
UNEMPLOYED
R/O
804
AGRA
W
AL COLONY
JABALPUR M.P. (MADHY
A
PRADESH)
3.
SMT. PUSHPA PATEL W/O SHRI JHALKAN
PRASAD PATEL D/O LATE RAMCHARAN PATEL,
AGED
ABOUT
61
YEARS, OCCUPATION:
UNEMPLOYED
R/O
406
GARHA
PURW
A
JABALPUR M.P. (MADHYA PRADESH)
4.
SMT. SHALINI PATEL W/O SHRI SHIV SHANKAR
PATEL D/O SHRI RAMCHARA PATEL, AGED
ABOUT 48 YEARS, OCCUPATION: UNEMPLOYED
R/O 1406 SAI BABA COLONY
JABALPUR M.P.
(MADHYA PRADESH)
.....PETITIONERS
(BY SHRI ANSHUMAN GOSWAMI, ADVOCATE)
AND
1.
GANGA PRASAD PATEL (DEAD) THROUGH L.RS.
SMT.INDRA
BAI
PATEL
(VERMA)
W/O
VISHW
ANATH VERMA, AGED ABOUT 63 YEARS,
OCCUPATION: NIL RANITAL CHOWK, H.NO.113,
KASTURBA
GANDHI
W
ARD,
JABALPUR
(MADHYA PRADESH)
2.
KRISHNAKANT
PATEL
S/O
LATE
GANGA
PRASAD PATEL, AGED ABOUT 65 YEARS,
OCCUPATION: NIL R/O 113 PATEL SAHAB KA
BADA
RANITAL
CHOWK
JABALPUR
M.P.
(MADHYA PRADESH)
3.
RAGHVENDRA
PATEL
S/O
LATE
GANGA
PRASAD PATEL, AGED ABOUT 55 YEARS,
OCCUPATION: NIL R/O 113 PATEL SAHAB KA
BADA
RANITAL
CHOWK
JABALPUR
M.P.
(MADHYA PRADESH)
4.
HARISHCHANDRA PATEL S/O LATE GABBU
PATEL, AGED ABOUT 70 YEARS, OCCUPATION:
NIL
R/O
113
KASTURBA
GANDHI
W
ARD
JABALPUR M.P. (MADHYA PRADESH)
5.
PREMCHAND PATEL (DEAD) THROUGH LRS.
SURENDRA PATEL S/O LATE PREMCHAND,
AGED ABOUT 45 YEARS, OCCUPATION: NIL R/O
CHOTI UKHARI Y
ADA
V COLONY
JABALPUR
M.P. (MADHYA PRADESH)
6.
KAMLA BAI PATEL W/O LATE SHRI JAGDISH
PATEL, AGED ABOUT 30 YEARS, OCCUPATION:
NIL R/O HOUSE NO. 104 PATEL SAHAB KA BADA
RANITAL CHOWK JABALPUR M.P. (MADHY
A
PRADESH)
7.
KU. ANJALI PATEL D/O LATE JAGDISH PATEL,
AGED ABOUT 7 YEARS, OCCUPATION: MINOR
THROUGH NATURAL GUARDIAN SMT. KAMLA
BAI PATEL R/O HOUSE NO. 104 PATEL SAHAB
KA BADA RANITAL CHOWK JABALPUR M.P.
(MADHYA PRADESH)
8.
ANSHUL PATEL S/O LATE JAGDISH PATEL,
AGED ABOUT 4 YEARS, OCCUPATION: MINOR
THROUGH NATURAL GUARDIAN SMT. KAMLA
BAI PATEL R/O HOUSE NO. 104 PATEL SAHAB
KA BADA RANITAL CHOWK JABALPUR M.P.
(MADHYA PRADESH)
9.
VIRENDRA PATEL S/O LATE BABULAL PATEL,
AGED ABOUT 70 YEARS, OCCUPATION: NIL R/O
RANITAL CHOWK HOUSE NO. 113 KASTURBA
GANDHI W
ARD JABALPUR M.P. (MADHY
A
PRADESH)
10.
HARISHANKAR PATEL S/O LATE BABULAL
PATEL, AGED ABOUT 70 YEARS, OCCUPATION:
NIL R/O RANITAL CHOWK HOUSE NO. 113
KASTURBA GANDHI W
ARD JABALPUR M.P.
(MADHYA PRADESH)
11.
MANDERA PATEL S/O LATE BABULAL PATEL,
AGED ABOUT 70 YEARS, OCCUPATION: NIL R/O
RANITAL CHOWK HOUSE NO. 113 KASTURBA
GANDHI W
ARD JABALPUR M.P. (MADHY
A
PRADESH)
12.
HORILAL PATEL S/O LATE BABULAL PATEL,
AGED ABOUT 70 YEARS, OCCUPATION: NIL R/O
KUCHPURA MAAL GODAAM KENEE JABALPUR
M.P. (MADHYA PRADESH)
13.
VIJAY
SHANKAR PATEL S/O LATE BABULAL
PATEL OCCUPATION: NIL R/O KUCHPURA
JABALPUR M.P. (MADHYA PRADESH)
14.
NAIB
TAHSILDAR
AND
EXECUTIVE
MAGISTRATE
(NAZUL)
JABALPUR DISTRICT
JABALPUR M.P. (MADHYA PRADESH)
15.
DEVENDRA PATEL S/O LATE GARIBDAS PATEL
AND LATE SMT. KASTURI BAI, AGED ABOUT 57
YE A R S , OCCUPATION:
NIL
R/O
BEHIND
DATTATREY
A MANDIR GOLBAZAR JABALPUR
M.P. (MADHYA PRADESH)
16.
SMT. HANSA BAI PATEL W/O LATE PRATAP
CHANDRA PATEL, AGED ABOUT 57 YEARS,
OCCUPATION: NIL R/O 820 KUMHAR MOHALLA
AGARW
AL COLONY
JABALPUR M.P. (MADHY
A
PRADESH)
17.
MEERA BAI PATEL W/O SHRI GANGARAM
PATEL, AGED ABOUT 67 YEARS, OCCUPATION:
NIL R/O INFRONT OF BHAIRA
V AKHADA CHOTI
UKHARI
Y
ADA
V
COLOY
JABALPUR
M.P.
(MADHYA PRADESH)
18.
SMT. LAXMI BAI PATEL W/O LATE SHRI
BABULAL PATEL, AGED ABOUT 85 YEARS,
OCCUPATION: NIL R/O HOUSE NO. 113 RANITAL
CHOWK JABALPUR M.P. (MADHYA PRADESH)
19.
SMT. KHOKHI BAI PATEL D/O LATE BABULAL
PATEL W/O PURAN LAL PATEL OCCUPATION:
NIL R/O INFRONT OF KACHPURA MAAL
GODAAM JABALPUR M.P. (MADHYA PRADESH)
20.
SMT. SHANTI BAI PATEL W/O LATE SHRI
BABULAL PATEL, AGED ABOUT 80 YEARS,
OCCUPATION: NIL R/O KACHPURA MAAL
GODAAM JABALPUR M.P. (MADHYA PRADESH)
21.
SMT. ASHA
BAI
PATEL
D/O
LATE
SHRI
BABULAL PATEL W/O SHRI HARILAL PATEL
OCCUPATION: NIL R/O CHOTI UKHARI Y
ADA
V
COLONY JABALPUR M.P. (MADHYA PRADESH)
22.
SUNITA BAI PATEL D/O LATE SHRI BABULAL
PATEL W/O SHRI PREM PATEL, AGED ABOUT 37
YEARS, OCCUPATION: NIL R/O HOUSE NO. 111
RAMPUR
SHANKAR
SHAH
NAGAR
W
ARD
JABALPUR M.P. (MADHYA PRADESH)
.....RESPONDENTS
(RESPONDENT NO.1 BY SHRI ABHIGYA VERMA, ADVOCATE)
RESPONDENT NO.6 BY SHRI ARPIT KUMAR TIWARI, ADVOCATE)
(CAVEATOR BY SHRI DINESH KUMAR UPADHYAY, ADVOCATE)
This petition coming on for hearing this day, the court passed the
following:
Anoop Nair,
ORDER
This Miscellenous Petition is filed by the petitioners challenging the order Annexure P/1 dated 3.1.2022 passed by learned XIV Civil Judge Junior Division, Jabalpur in Civil Suit No.47A/2007 rejecting an application under Section 65 of the Indian Evidence Act, 1872 filed on behalf of the petitioners for taking photocopies as secondary evidence on record.
Learned counsel for the petitioners places reliance on the judgment of Hon'ble the Supreme Court in Marwari Kumhar & Others versus Bhagwanpuri Guru Ganeshpuri & Another 2000 (5) Supreme 486 to contend that where the original record has been lost or destroyed then secondary evidence of the contents of document is admissible. Sub-clause (c) of Section 65 is independent of Sub-clause (f) of the Indian Evidence Act, 1872. Secondary evidence can be led, even of a public document, if the conditions as laid down under Sub-clause (c) are fulfilled. Thus, if the original of the public document has been lost or destroyed then the secondary evidence can be given even of a public document. The petitioners/plaintiffs had applied under Right To Information Act, 2005 and they were informed that the concerned file was lost. Reliance is placed on Document (Annexure P/6) dated 27.9.2012 wherein it is mentioned by the Tahsildar Kotwali (Nazul) Jabalpur that the File bearing Revenue Case No.2/A-27-2002-2003 is not available in the Revenue Register of the newly constituted Kotwali Court formed in the year 2009. The aforesaid fact was considered by learned Additional Collector vide order dated 20.11.2014 and, therefore, the petitioners/plaintiffs were entitled to lead secondary evidence.
Learned counsel for the other side submits that it has come in the evidence of Ashok Patel, which was led before the Trial Court that he had exhibited several documents from the partition case from the Court of Naib Tahsildar including Fard Batwara (Exhibit P/9) and the affidavits of some witnesses, namely, Ganga Prasad Patel & Babulal Patel as Exhibit P/7 & Exhibit P/8. Even the application, which was moved by Ganga Prasad Patel for obtaining Bhu Adhikar Avam Rin Pustika, was exhibited as Exhibit P/6.
Similarly, the letters of consent of different parties were exhibited and, therefore, the contention that the file was lost, is not made out. Infact the Tahsildar Kotwali (Nazul) Jabalpur has only mentioned that since its Court was newly constituted in the year 2009, therefore, the record of the said case was not available at the newly constituted Court of Kotwali. The onus was on the petitioners/plaintiffs to have obtained copies of the case from the concerned Tahsil Office and the order passed by the Additional Collector only directs the Public Information Officer of the Collectorate to locate the file and conduct enquiry in that regard. In absence of any other material on record, the photocopies could not be exhibited.
I have perused the impugned order so also the judgment of Hon'ble the Supreme Court in Marwari Kumhar & Others versus Bhagwanpuri Guru Ganeshpuri & Another (supra). It is nowhere mentioned in the application under Section 65 of the Indian Evidence Act, 1872, which is available on record as Annexure P/13, that the document in relation to which secondary evidence is required to be led pertains to the Revenue Case No.2/A-27-2002-2003 while infact the document sought to be exhibited as secondary evidence is from lost file. Thus, in absence of any such fact being mentioned in the application under Section 65 of the Indian Evidence Act, 1872, it cannot be said that the law laid down by Hon'ble the Supreme Court in Marwari Kumhar & Others versus Bhagwanpuri Guru Ganeshpuri & Another (supra) has any application to the facts of the present case.
Accordingly, this Miscellenous Petition fails and is dismissed.
(VIVEK AGARWAL) JUDGE amit
