KALIBAI Vs. AJAY

JUDGEMENT

(1.) Being aggrieved by the order dated 3-11-2012 passed by I Civil Judge, Class II, Jhabua in Civil Suit No. 43-A/2012 whereby application filed by the respondent No. 1 under Section 65 of the Evidence Act with a prayer to permit the respondent No. 1 to prove the Will by adducing the secondary evidence was allowed, present petition has been filed. Short facts of the case are that respondent No. 1 filed a suit for declaration, possession and for cancellation of sale-deed which was executed by petitioner No. 1 in favour of petitioner Nos. 2 and 3 alleging that suit property was belonging to one Limba who was husband of petitioner No. 1 and respondent No. 1 is the adopted son. It was alleged that Limba died on 22-1-2011 and in his life time he executed a Will on 23-7-2005 in favour of respondent No. 1. It was prayed that suit be decreed. The suit was contested by the petitioners wherein all the plaint allegations were denied. It was denied that Limba ever executed any Will in favour of the respondent No. 1. After framing of issues at the stage of evidence respondent No. 1 filed an application under Section 65 of Evidence Act alleging that respondent No. 1 be permitted to prove the Will by adducing secondary evidence. It was alleged that Will is in possession of petitioner No. 1, which is not produced in spite of notice. It was prayed that application be allowed. The application was contested by the petitioner No. 1 on various grounds including on the ground that neither any Will was executed by the deceased/Limba nor petitioner No. 1 is in possession of such Will. It was prayed that application be dismissed. After hearing the parties learned Court below allowed the application against which present petition has been filed.

(2.) Learned Counsel for the petitioners argued at length and submit the impugned order is illegal, incorrect and deserves to be set aside. It is submitted that since the document which respondent No. 1 wants to prove is Photostat copy, therefore, the same cannot be allowed to prove by secondary evidence. Learned Counsel placed reliance on a decision in the matter of Ratanlal Vs. Kishanlal, 2012 1 MPLJ 120, wherein this Court held that photocopy is neither a primary nor secondary evidence. It is submitted that petition be allowed and impugned order be set aside.

(3.) Learned Counsel for the respondent No. 1 supports the order and submits that since original Will is in possession of petitioner No. 1 who is wife deceased, therefore, respondent No. 1 is left with no option except to prove the Will by adducing secondary evidence. Learned Counsel placed reliance on a decision in the matter of M. Chandra Vs. M. Thangmuthu, 2010 AIR(SCW) 6362, wherein Hon'ble Apex Court while dealing with Section 63 of the Evidence Act observed that Section 63 of Evidence Act intended to provide relief to party genuinely unable to produce original through no fault of that party, non-acceptance of duplicate copy of conversion certificate is improper. It is submitted that petition has no merits and the same be dismissed. In the matter of Ratanlal , the facts of the case were altogether different, therefore, the law laid down in that case is not applicable in the present case. The photocopies are the secondary evidence. The Indian Evidence Act sets out the procedure for receiving the secondary evidence. It has to be shown that primary evidence is not available or that anyone of the circumstances such as non-availability or custody of the document in the hands of the adversary will be sufficient grounds for producing secondary evidence. The secondary evidence includes among other documents a document produced by exercise of the mechanical device that ensures the correctness of the original. The photocopies of the document is one such procedure and if a valid ground is given for acceptance of secondary evidence, then there cannot be any objection to the reception of photocopies of documents. The rejection of the documents had arisen only by the fact that the photocopies and therefore, they cannot be received in evidence. There is no merit in such a contention for, if the objection is that there is no basis for not producing the original or that the so called original is not in the custody of the plaintiff himself as contended by the defendants, then it is a matter that has to be brought out in the cross-examination of the witness and the reception of the documents themselves cannot be prohibited. In the facts and circumstances of the case, petition filed by the petitioner has no substance, hence the same stands dismissed.