USHA BAI Vs. ARIF BEG

JUDGEMENT

(1.) This petition, under Article 227 of the Constitution of India has been filed challenging the order dated 9.11.2017 passed by Civil Judge Class II, Pipariya in Civil Suit No.18-A/14 allowing the application filed by the plaintiff taking the photocopy of the agreement dated 10.6.2003 on record in view of Section 65(c) of the Evidence Act inter alia recording the finding that the said document was misplaced while he was coming to the office of Advocate to which F.I.R. has been lodged on 4.12.2014, therefore, the photocopy of the agreement to sale may be taken on record, however, being aggrieved, this petition has been preferred by the defendant.

(2.) Learned counsel appearing on behalf of the petitioner submits that for the purpose of bringing the secondary evidence on record, the instrument must be duly stamped, until it is not duly stamped, its photocopy cannot be taken on record in view of the provisions of Section 63 and 65(c) of the Evidence Act. In support of the said contention, reliance has been placed to para-8 and 9 of the judgment of Supreme Court in the case of Hariom Agrawal v. Prakash Chand Malviya (2007) 8 SCC 514 to contend that looking to the ratio of the said judgment, the document which is not duly stamped, its photocopy cannot be taken as secondary evidence.

(3.) On the other hand, learned counsel appearing on behalf of respondent submits that as per the language of Section 65, secondary evidence can be given of the existence, condition, or contents of a document for the purpose of inspection of the Court as specified in the definition of word "Evidence". However, any document if brought by way of secondary evidence for inspection of the Court, it would not include the stage of admissibility of the said document, which would come at the stage of evidence while exhibiting it for prove or disprove. In view of the said submission, it is urged that the trial Court has rightly allowed the application filed by the plaintiff which is the basis of the suit, directing to take the agreement to sale dated 10.6.2003 on record.