HEMRAJ Vs. MUNNALAL

JUDGEMENT

(1.) The instant petition filed under Article 227 of the Constitution challenges the order dated 26.4.2012 passed by the trial Court in Case No.13-A/10, whereby the application of the petitioner/plaintiff for grant of permission to lead secondary evidence has been rejected.

(2.) The petitioner filed a suit for declaration and partition against the defendant. The petitioner relied on a document dated 23.1.97 (Annexure P-3). It is the case of the petitioner that it is a Panchanama which acknowledges partition entered between the parties. The petitioner filed an application under Section 65 of the Evidence Act. (Annexure P-4) with a view to seek permission to treat the document dated 23.1.1997 as a secondary evidence. The defendants/respondents denied the averments of the application preferred under Section 65 of the Evidence Act. The Court below by impugned order dated 26.4.2012 opined that the said document is a photocopy and original is not produced before the Court. Neither the original, nor the photocopy is registered under Section 17 of the Registration Act. For these reasons the said document cannot be treated as secondary evidence.

(3.) Shri S.K.Shrivastava, learned counsel for the petitioner fairly admits that it cannot be doubted that the reasons assigned by the Court below are in consonance with the legal position. He admits that this Court in (Vijendra Singh and others Vs. Deena and others, 2013 3 MPLJ 242) has taken the view that a document which is not properly stamped cannot be accepted in evidence. It is further held that the true copy or photocopy cannot be accepted in evidence unless necessary ingredients of Section 63 and 65 are fulfilled. However, Shri S.K.Shrivastava, submits that he deserves relief and liberty of filing fresh application under Section 65 of the Act as per para 15 of the judgment (Aneeta Vs. Saraswati, 2012 4 MPLJ 561).