IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE ANIL VERMA ON THE 2^nd OF JULY, 2024 MISC. PETITION No. 555 of 2024 (MOTISINGH DEWDA S/O BALUJI DEWDA THROUGH POWER OF ATTORNEY RAJESH DEWDA Vs SMT. TEJABAI AND OTHERS)

Appearance:

(SHRI ROHIT KUMAR MANGAL – ADVOCATE FOR THE PETITIONER)

(SHRI SHASHIKANT BHATI – PANEL LAWYER FOR RESPONDENT NO.2/STATE)

(MS. SHATAKSHI CHAUHAN – ADVOCATE FOR RESPONDENTS NO.3 TO 7)

(NONE FOR RESPONDENT NO.1)

-----------------------------------------------------------------------------------------

Whether approved for reporting: YES ------------------------------------------------------------------------------------------

ORDER

1. Petitioner has preferred this petition under Article 227 of the Constitution of India being aggrieved by the impugned order dated 20.1.2024 passed by the 2^nd Addl. District Judge, Dewas in RCSA 44/2022, whereby petitioner/plaintiff’s request for perusal of photographs by operating the mobile phone has been rejected.

2. Brief facts of the case are that the petitioner has filed a civil suit for specific performance of the contract, permanent injunction and declaration of sale deed as null and void by stating that an agreement to sale dated 13.3.2020 has been executed, whereby respondent No.1 was agreed to sale the agricultural property situated at village Patadi admeasuring 8.390 hectares. A token amount of Rs.1,01,000/- was received by the respondent No.1, but respondent No.1 was failed to execute the sale deed. Therefore, petitioner has preferred a civil suit against the respondent. The petitioner has filed various documents to prove his case along with some photographs, video and mobile phone. Petitioner has sought permission for exhibiting the photographs, video and mobile and to operate the mobile phone and procure the photographs and video from the mobile phone, but the trial Court has allowed only to see the video and denied the permission to see the photographs as there has been no certificate of Section 65-B of the Indian Evidence Act, 1872 in support of the electronic records. Being aggrieved by the impugned order, petitioner has preferred this petition.

3. Learned counsel for the petitioner contended that the learned trial Court has failed to consider the true aspect of requirement of certificate under Section 65-B of the Evidence Act, as the mobile in which the photographs are present is primary evidence and has already been exhibited in the present matter. The requirement of Section 65-B of Evidence Act is not necessary, if the original article has been produced. Only for the purpose of secondary evidence production of such certificate is mandatory. Hence, he prays that the impugned order be set aside and the objection of respondents be rejected and the photographs stored in the mobile phone filed by the petitioner may kindly be permitted to exhibit and admit in the evidence. Counsel for the petitioner has placed reliance upon the judgment of Hon’ble Supreme Court in the case of Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and others reported in (2020) 7 SCC 1

4. Per contra, counsel for the respondents opposes the prayer and prays for its rejection by submitting that the impugned order passed by the court below is just, proper and in accordance with law and not deserve for any interference.

5. Both the parties heard at length and perused the impugned order and other documents with due care.

6. Section 65-A & 65-B of the Indian Evidence Act, 1872 reads as follows:-

“65-A. Special provisions as to evidence relating to electronic record. ––The contents of electronic records may be proved in accordance with the provisions of section 65B.

65-B. Admissibility of electronic records. –– (1)

Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be dee