GWALIOR DEVELOPMENT AUTHORITY Vs. DUSHYANT SHARMA

JUDGEMENT

(1.) By invoking the jurisdiction of this Court under Article 227 of the Constitution, the petitioner-Gwalior Development Authority (GDA) has assailed the order dated 17-12-2012. By the said order, the application preferred by the petitioner/defendant No. 1 under section 65 of the Evidence Act is rejected by the Court below. Brief facts necessary for adjudication of this matter are as under:--

(2.) Criticizing the said order, Shri Raghvendra Dixit, learned counsel for the GDA, submits that a careful reading of section 63(a) (illustrations) read with section 65(c) makes it clear that the documents in question can be treated as secondary evidence. He relied on the definition of "proved" in the Evidence Act and submits that said documents would be proved by leading the evidence but at this stage the documents cannot be discarded. He relied on Smt. Sobha Rani and others vs. Ravi Kumar and others, 1999 AIR(P&H) 21; Tawar Singh vs. Ranjit Singh, 2001 1 MPWN 54 and Mahaveer Kumar Jain vs. Atal Bihari Tamrakar, 2012 5 MPHT 160.

(3.) Shri J.P. Shrivastava, learned counsel for the respondent No. 1 supported the order and submits that the photocopies of the documents do not fall within the ambit of "secondary evidence" as per the Evidence Act. He submits that the said documents were filed along with affidavit of witness of GDA, namely, Shri Manoj Mathur (Officer Incharge of the case--OIC). The OIC is admitted appointed on 11-9-2012. As per GDA's own case, the documents were stolen in 2004. The FIR was lodged in 2011. The OIC in his affidavit has no where stated that he had seen the original documents and compared it with the photocopies. The aforesaid fact makes it crystal clear that the documents were stolen much before appointment of OIC and there is no occasion for the said OIC to certify the correctness and genuineness of the said documents to compare it with originals. He submits that in absence of taking that responsibility and comparing of documents with the original, the said documents are impermissible for the purpose of treating them as secondary evidence. He relied on, Sunil Kumar and another vs. Anguri Chaudhari and another, 2002 3 MPLJ 371; Haji Mohd. and another vs. Asgar Ali and another, 2006 3 MPLJ 334; Smt. Aneeta Rajpoot vs. Smt. Saraswati Gupta, 2012 4 MPLJ 561 and Vijendra Singh and others vs. Deena and others,, 2013 3 MPLJ 242.