IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE ANIL VERMA ON THE 19TH OF JULY, 2024 MISC. PETITION NO. 1799 OF 2024 (Kalabai & others Vs Durgabai & others Appearance:

(Shri B.K. Pandya Advocate for petitioners)

(Shri Vishal Patidar Advocate for respondents No. 1 to 5)

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ORDER

Heard finally with consent.

1/ The petitioners have preferred this Misc. Petition under Article 227 of Constitution of India being aggrieved by the impugned orders dated 25.1.2024 and 27.2.2024 passed by 5^th Civil Judge Junior Division Mandsaur in RCSA 162/2021, whereby the application under Sections 63 and 65 of Evidence Act and application under Order 16 Rules 1 and 6 CPC have been dismissed.

2 Counsel for petitioners submits that petitioners/plaintiffs have filed a civil suit before the trial court for declaration of title and permanent injunction. During pendency of the civil suit, petitioners have preferred an application under Sections 63 and 65 of Evidence Act by stating that respondents/defendants have filed the affidavit dated 23.11.2007 for their consent regarding the mutation which has been signed by defendants Durgabai, Kamlabai, Santoshbai and Dhapubai. The original affidavit has been filed before the Tehsil Court but it is not traceable therefore, petitioners be permitted to prove the said affidavit by filing its photocopy as secondary evidence. But after hearing both the parties, the trial court vide impugned order dated 25.1.2024 has rejected the said application. Thereafter they filed another application under Order 16 Rules 1 and 6 CPC for producing the mutation register and affidavit but the trial court after hearing both the parties has rejected the said application also which is against law and fact. The aforesaid secondary evidence is necessary to prove the case of petitioners before the trial court. The trial court has committed error in rejecting both applications. Hence it is prayed that both the impugned orders be set aside and applications filed by petitioners before the trial court be allowed.

3 Per contra learned counsel for respondents no. 1 to 4 opposes the petition by submitting that the impugned orders passed by the trial court are accordance with law and do not deserve for any interference.

4 Both the parties heard at length and perused the documents filed by them.

5 From perusal of the application under sections 63 and 65 of Evidence Act produced by the petitioners before the trial court (Annex.P-6) it appears that petitioners have sought permission to prove the photocopy of the affidavit (Annex.P-7) by way of secondary evidence. Although it is contended by counsel for petitioners that as per Annexure P-1, Copying Section of Tehsildar Mandsaur has informed that affidavit was not found with mutation register therefore, no certified copy of said document could be supplied, but infact the alleged affidavit was executed on the stamp paper, therefore, petitioners can prove the said affidavit by obtaining the corresponding entries of the concerned stamp vendor and concerned notary but petitioners did not avail these alternative options.

6 In the case of Ratanlal Vs. Kishanlal reported in 2012(1) MPLJ

120, this Court has held as under :

“ 12 According to me, the photocopy is neither a primary nor secondary evidence and in this regard decision of this Court Ramesh Verma and others etc Vs. Smt. Lajesh Saxena and others etc AIR 1998 MP 46 may be seen. Apart from this even if it is stretched to the extent to bring the photocopy of will Ex.-P/1 within the sphere of secondary evidence, the plaintiff was required to satisfy the ingredients to section 65 of the Evidence Act which speaks about the secondary evidence. The plaintiff was further required to examine the person who took out the photocopy of the original. This is very much essential because, it is a matter of common knowledge that by putting anoth