SAUDUL AZEEZ Vs. DISTRICT JUDGE GORAKHPUR

JUDGEMENT

(1.) In a suit for partition, the plaintiff had claimed title on the basis of Will executed by one Raseeda Khatoon. The parties did not dispute the title of Raseeda Khaloon. The petitioners sought to get themselves impleaded in the suit being O. S. No. 838 of 1995 pending before the learned Additional Civil Judge, Senior Division, Gorakhpur, on the strength of Hibanama, Memorandum or Will as the case may be, as pleaded in the application under Order 1, Rule 10. of the Code of Civil Procedure- The plaintiff had filed an application for direction upon the petitioner-applicant for addition of parties to produce the documents on which they had based their claim. By an order dated 18th November, 1997, the said application was allowed and the applicants were directed to produce the documents. Subsequently, the application for addition of parties was dismissed by an order dated 6th April, 1998 on the ground that despite having been given sufficient time, no documents were filed and that on the date 6lh April. 1998. the applicant had absented himself. This order was challenged in revision being Civil Revision No. 160 of 1999. By an order dated 21st July. 1999. the revision was also dismissed. These orders have since been challenged by the petitioner in the present writ petition.

(2.) Mr. K. A. Qayyum. learned counsel for the petitioner contends that the trial court had acted illegally and with material irregularity in rejecting the application on the date when the petitioner was absent. The petitioner had explained the reason why he was absent on the said date. But the same was not taken into consideration by the revisional Court. On the other hand, it had affirmed the order passed by the learned trial court on an erroneous view. He further contended that a photocopy of the document was produced before the trial court which was also on record on 6th April, 1998 which was overlooked by the learned trial court. Whereas the revisional Court had proceeded on the basis that the trial court had directed production of the original documents and that was not produced and production of photocopy was not sufficient. Mr. Qayyum contends that there was no order directing the petitioner to produce the original documents. The order was a simple order directing production of documents. Therefore, the order passed by the revisional court suffers from perversity and should, therefore, be set aside.

(3.) Ms. Sudha Pandey holding brief of Mr. A. N. Bhargava, learned counsel for the opposite party contends that there is no infirmity in the order and that the petitioner was directed to produce the documents. The document denotes the original. Unless the Court permits secondary evidence the photocopy is not permitted. The photocopy cannot be treated to be the document unless it is admitted as a secondary evidence following the provision laid down in the Evidence Act. Since the claim is based on the basis on such documents, it is incumbent upon the applicant to show that the right claimed by him is genuine. The genuineness cannot be ascertained from a photocopy. She further contends that even if it was not possible to produce the original there should have been explanation before the learned trial court. She further contends that even if no explanation was available before the trial court, it was incumbent on the revisionist-petitioner to explain the same in the revision itself and it was also open to him to produce the original before the revisional court. She further contends that the applicant could have even produced the original in this Court. The petitioner cannot claim that production of document couid be complied with by production of a photocopy. The question of non-appearance on 6th April. 1998 cannot be explained before the revisional court. It should have been explained if an application for recalling the order dated 6th April, 1998 was filed. Be that as it may, according to her, since the applicant had not produced the documents and has not complied with the direction despite having obtained sufficient time and the Court having not accepted the photocopy sufficient for corning to the conclusion that the petitioner has a genuine case for being added as a party to the proceedings, this Court sitting in revisional Jurisdiction should not interfere with the findings arrived at by both the Courts below.