IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VIVEK JAIN

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ON THE 19 OF JANUARY, 2026 MISC. PETITION No. 140 of 2026 ANIKUJJMA KHAN AND OTHERS Versus SMT KHALDA BEGAM AND OTHERS Appearance:

Shri Sunil Kumar Mishra - Advocate for the petitioners.

ORDER By way this petition the petitioner has challenged the order passed by the trial court dated 12-12-2025, whereby the trial court has permitted to lead secondary evidence of a document, photocopy whereof has been produced before the trial court.

2. The counsel for the petitioner has raised a singular ground before this court that the trial court could not have allowed to take the photocopy of the document in secondary evidence because nothing had been placed by the respondents/ defendants No. 5 and 6 before the trial court that the document was photocopied from the original and that it was exact replica of the original and had been produced from some mechanical process which ensured it to be exact photocopy or replica of the original and therefore, in absence of the necessary ingredients as per Section 60 of Bhartiya Sakshya Adhiniyam-2023 (old Section 65 of Indian Evidence Act), the trial court could not have permitted to lead secondary evidence of the said document under Section 60 of BSA-2023.

3. Upon considering the aforesaid assertion, it is seen that earlier the application under Section 60 BSA had been dismissed by the trial court and the defendants No. 5 and 6 had approached this court challenging the said rejection on the ground that the said document was placed on record by the defendant No. 1 in his written statement and thereafter, before start of evidence, the defendant No.1 expired and his legal heirs were substituted in the proceedings but they had chosen not to appear before the trial court and have been declared ex-parte in the proceedings. The defendants No. 5 and 6 wanted to lead secondary evidence of the document, a photocopy of which had been filed by the defendant No. 1 along with his written statement. 4. This court while dealing with the said petition, had passed the following order.

"2. It is the case of the petitioners before this Court that a suit has been filed by the plaintiff wherein the present petitioners are defendant Nos.5 and 6. There was a sale transaction in their favour by the defendant No.1 and the defendant No.1 in turn, being member of family derived his title from a consent letter/Ikrarnama executed by his mother Fatima Bi in the year 1995. It is the case of petitioners that the defendant No.1 had filed a written statement and in the written statement he had brought the said document on record by stating that he has executed the statement on the strength of his share/title derived by the said Ikrarnama/consent letter/arrangement letter written by his mother and consented by all the members of family including the plaintiff. After filing of the written statement, original defendant No.1 expired and his legal heirs have been substituted in his place but the legal heirs despite substitution have decided not to appear before the trial Court and have been proceeded ex parte in the proceedings.

3. The petitioners, at the appropriate stage of the suit, sought to lead their evidence by relying on the said document dated 29.11.1995 and filed an application for giving secondary evidence as per Section 60 of BSA. It is the case of petitioners that earlier an application under Order XI Rule 12 CPC was filed to direct the legal heirs of defendant No.1 to produce the original of the said document dated 29.11.1995 but since the legal heirs of defendant No.1 are ex parte, therefore, no orders on the said application has been passed by the trial Court as yet.

4. It is also the case of petitioners that they have served a notice to the legal heirs of defendant No.1 in terms of Section 66 of the Indian Evidence Act/Section 64 of BSA on 26.09.2025 calling upon them to produce the original of the said document because the photocopy of the