SHEDU Vs. BIRDHA

JUDGEMENT

(1.) THIS revision petition is directed against the order dated 10. 5. 96 passed by the Civil Judge-cum-Judicial Magistrate, Jaipur in Civil Suit No. 337/94 wherein the question that falls for consideration is whether photocopy of a document whose original possibly could not have been in possession of the plaintiff and yet is vital to prove his plea, could be refused to be accepted on a technical plea that a photocopy of the document can be only in the nature of secondary evidence which could not be accepted as it is the only the document in original which can be treated as primary evidence which has been proved by the plaintiff. The aforesaid question arises under the following facts and circumstances:- the petitioner-herein was the plaintiff who had filed a suit on the averment that the disputed land measuring 15 biswas bearing Khasra No. 121 situated at Dhani Hemka Wali, village Natata is the joint property of the plaintiff/petitioners and the defendant/respondent No. 1 are co-sharers from a common ancestor. The plaintiff's case therein was that the land in question although fell into the joint share of the plaintiffs/petitioners and the defendant/respondent No. 1, the defendant/respondent No. 1 was denying the share to the plaintiff in the disputed land inspite of a family arrangement according to which the land was to be divided by constructing 12 shops out of which Shop No. 5 and 6 were to fall into the share of the plaintiff-petitioner. Inspite of this, the defendant-petitioner started interfering with this arrangement and executed a sale deed in favour of a third party due to which the suit had to be filed, but in order to prove his case, the plaintiff prayed that the sale deed be directed to be produced in evidence by the defendant-respondent and in case it is not produced, the plaintiff-petitioner be granted liberty to prove the agreement of sale by filing the photostat copy of the sale deed. The Court below has rejected the application stating therein the reason that since the plaintiff-petitioner failed to produce the copy of the agreement to sale in original, photocopy of the said document cannot be allowed to be taken on record.

(2.) CHALLENGING the aforesaid order it was submitted that the agreement of sale by the defendant-respondent was relied upon as a vital piece of evidence in order to prove interference of the defendant on the suit land and that document practically could not have been in possession of the plaintiff; at the most, the plaintiff could have been expected to produce photostat copy only since denial of permission to the plaintiff/petitioner in producing the document might seriously prejudice the case of the plaintiff since this was a material document on which the plaintiff is relying in support of his plea.

(3.) UNDER the circumstances, the order of the trial Court is not fit to be sustained and hence, it is set aside with a direction to the Court below to accept the photostat copy of the agreement of sale, the genuineness and veracity of which will be put to test at the appropriate stage of the trial since defendant also will have sufficient opportunity to deny this documents. Hence, the trial Court is directed to accept the copy of the document which is a photo copy of the agreement of sale executed by the defendant respondent in favour of a third party.