Allowed

Babu Ram v. Santosh Kumar

Rajasthan HC6 Dec 2018CW/11007/2018

Case brief

AI extract

What is this about?

In a writ petition, the High Court quashed the trial court's order rejecting the petitioner's Section 65 Evidence Act application. The court allowed the petitioner to mark a photocopy of an agreement to assist the trial court in verifying allegations of interpolation against the plaintiff who holds the original.

What did the court decide?

Impugned order under Section 65 of the Evidence Act quashed and set aside; application allowed and document taken on record for marking as exhibit.

Babu Ram Vs Santosh Kumar — Specific Performance | Rajasthan HC (2018)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

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JODHPUR

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S.B. Civil Writ No. 11007/2018

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Babu Ram S/o Shri Shankar Lal, Aged About 65 Years, B/c Bishnoi, Chak-2AN.P, Tehsil Raisingh Nagar, District Sri Ganganagar (Raj).

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----Petitioner

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Versus

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Santosh Kumar S/o Shri Shankar Lal, Aged About 54 Years, B/c Bishnoi, Chak-16-T.K., Dhani, Tehsil Raisingh Nagar, District Sri Ganganagar (Raj.).

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----Respondent

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For Petitioner(s) : Mr. Sunil Beniwal For Respondent(s) : Mr. Mahaveer Bishnoi

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JUSTICE DINESH MEHTA

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Order

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06/12/2018

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Though the present writ petition is listed for admission, but looking to the narrow compass of the controversy and at the request of the rival counsels, the same is being decided finally.

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The petition is directed against the order dated 10.07.2018, passed by learned Additional Chief Judicial Magistrate, Raisingh Nagar, District Sri Ganganagar (hereinafter referred to as the ‘trial Court’), whereby petitioner’s application under Section 65 of the Evidence Act has been rejected.

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The factual canvass of the case, to the extent relevant for the purpose of pronouncing upon the impugned order, unfolds as infra:-

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The plaintiff filed a suit for specific performance for an agreement to sell dated 17.03.2009, against the defendant

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(2 of 5)

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[CW-11007/2018]

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(petitioner herein). The said agreement in original was filed with the suit.

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The petitioner filed written statement indicating that the agreement dated 17.03.2009, filed with the plaint has been tempered with/interpolated by the plaintiff. In support of the assertion so made, the petitioner has placed a photocopy of the said agreement dated 17.03.2009, stating that at the time of execution of the said agreement, the original was retained by the plaintiff, whereas a photocopy thereof was given to him.

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On 07.05.2018, when the matter came up for petitioner’s evidence, he moved an application under Section 65 of the Evidence Act, 1872, interalia seeking leave to lead evidence on the strength of the photocopy of the agreement dated 17.03.2009. Petitioner simultaneously moved another application of even date, under Order XIV Rule 5 of the Code, and prayed that an additional issue in relation to interpolation in the agreement dated 17.03.2009 be framed.

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The learned Trial Court vide its common order dated 10.07.2018 decided both the applications filed by the petitioner. The petitioner’s application under Order XIV Rule 5 of the Code of Civil Procedure was allowed and an additional issue in relation to interpolation in the original agreement dated 17.03.2009 was framed; whereas his application under Section 65 of the Evidence Act was rejected, interalia observing that the petitioner has failed to prove the existence of the conditions mentioned in Section 65 of the Evidence Act, 1872.

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Mr. Beniwal, learned counsel for the petitioner assailing the order dated 10.07.2018, to the extent of rejection of petitioner’s application under Section 65 of the Evidence Act, contended that

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(3 of 5)

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[CW-11007/2018]

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the learned Trial Court has erred in refusing the petitioner, the permission to lead evidence on the basis of photocopy of the contentious agreement dated 17.03.2009. Reiterating the facts that the original agreement was in power and possession of the plaintiff, which has been filed in support of the suit for specific performance and that a photocopy of the agreement was got prepared at the time of execution of the agreement, and the same was kept by the petitioner, and the same has been filed with the written statement; he argued that the case squarely falls within the ambit of Clause (a) of Section 65 of the Evidence Act. With these assertion he argued that the Trial Court has fallen into apparent error of law in rejecting petitioner’s application vide its order impugned.

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Mr. Bishnoi, learned counsel appearing for the respondent submitted that the Court below has committed no error of law inasmuch as the onus lay upon the petitioner to prove that there were certain interpolations in the original agreement, which has to be proved on the basis of the original agreement filed by the plaintiff.

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He further contended that the petitioner has failed to establish that the photocopy, which he has produced is a true and accurate copy of the original agreement, though generated by mechanical process.

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Heard learned counsel for the parties and perused the material available on record.

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An appraisal of the pleadings of the parties makes it abundantly clear that the plaintiff has come with a specific assertion that on 17.03.2009, the agreement was signed and original was kept with him; whereas the defendant’s case has

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(4 of 5)

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[CW-11007/2018]

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been that its photocopy was prepared at the same time and was retained by the defendant.

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The original agreement was undisputedly in the power and possession of the plaintiff and the defendant seeks to assert/prove his case that the plaintiff has made interpolation in the said original agreement.

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This being the fact situation, the case at hand is covered by the contingency mentioned in Clause (a) of the Section 65 of the Evidence Act, 1872, as the petitioner (defendant) seeks to use the photocopy against the plaintiff, who is possessed of the original agreement dated 17.03.2009. Needless to observe that as the agreement in original is already on record, there remains no requirement of observance of Section 66 of the Act of 1872.

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Apart from the above, looking to the rival contentions and the assertion of the defendant that there is an interpolation in the original agreement, it would be in the fitness of things that the subject photocopy is taken on record, so that the trial Court may compare both of them and weigh the corresponding oral evidence on preponderance of probabilities.

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In considered opinion of this Court, there cannot be any better option for deciding the issue of interpolation than permitting the petitioner to exhibit the photocopy. The photocopy alone may not be a conclusive evidence, but the same will assist the Trial Court to arrive at the conclusion or forming an opinion about the alleged interpolation, said to have been made by the plaintiff.

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In view of the discussion foregoing, the impugned order dated 10.07.2018 to the extent of rejection of petitioner’s application under Section 65 of the Evidence Act is quashed and

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(5 of 5)

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[CW-11007/2018]

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set aside. The application dated 07.05.2018, under Section 65 of the Evidence Act stands allowed; the document is taken on record. Needless to state that the petitioner shall be permitted to mark exhibit thereupon.

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It is however clarified that merely because the subject photocopy of the agreement is taken on record, the same by itself will not be a proof of its correctness and voracity. All the parties shall be free to lead appropriate oral or ocular evidence in relation to its correctness and voracity.

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The contentions and objections of the rival parties shall be decided by the Trial Court in accordance with law, at appropriate stage.

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Petition allowed as above.

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(DINESH MEHTA),J

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59-Anurag/-

Babu Ram v. Santosh Kumar

Case brief

What is this about?

What did the court decide?

Babu Ram v. Santosh Kumar

Case brief

What is this about?

What did the court decide?

What the court decided

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