Allowed

Mahadev Prasad Son of Late Shri Mohan Ji Parashar v. Adhish Kumar Son of Late Shri Mohan Ji Parashar

Rajasthan HC19 Oct 2022CW/3347/2022

Case brief

AI extract

What is this about?

The High Court of Rajasthan, in a writ petition under Article 227, quashed an order of the trial court that allowed secondary evidence of photographs under Section 65 of the 1872 Act. The Court held that the statutory conditions were not met as the documents were not listed or tendered during evidence.

What did the court decide?

The impugned order of 27.01.2022 allowing secondary evidence under Section 65 was quashed, and the application for secondary evidence was dismissed.

Mahadev Prasad Son of Late Shri Mohan Ji Parashar Vs… — Property and Title | Rajasthan HC (2022)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Writ Petition No. 3347/2022

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Mahadev Prasad Son Of Late Shri Mohan Ji Parashar, Aged About 54 Years, Resident Of Bhopa Ka Khait, Gangapur City, District Sawai Madhopur.

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----Petitioner

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Versus

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Adhish Kumar Son Of Late Shri Mohan Ji Parashar, Resident Of Gangapur City, District Sawai Madhopur.

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Nidhish Kumar Son Of Late Shri Mohan Ji Parashar, Resident Of Gangapur City, At Present Jaswantgarh, At Present Employee At Government Girl Higher Secondary School, Jaswantgarh, District Nagaur (Deceased)

¶8

Sudhish Kumar Son Of Late Shri Mohan Ji Parashar, Resident Of Gangapur City, At Present Working At Government Primary School, Devri And House Of Ratan Lal Jain, Sarsop, District Sawai Madhopur.

¶9

Shirish Kumar Son Of Late Shri Mohan Ji Parashar, Resident Of Gangapur City, At Present Mehron Ki Nadi, Khawasji Ka Rasta, Jaipur.

¶10

Kanta Devi Daughter Late Shri Mohan Ji Parashar, Wife Of Shri Manju Dayal Sharma, Resident Of Kartar Nagar Colony, Near New Tehsil, Kaman, District Bharatpur.

¶11

Ramesh Chandra Son Of Ramswaroop, Resident Of Village Sewa, Tehsil Gangapur City, District Sawai Madhopur (Deceased)

¶12

Uganti Devi, Wife Of Late Ramesh Chand Parashar

¶13

Rakesh, Son Of Late Ramesh Chand Parashar

¶14

Yogesh Son Of Late Ramesh Chand Parashar, Residents Of Village Sewa, Tehsil Gangapur City, District Sawai Madhopur.

¶15

Ghanshyam Son Of Ramswaroop, Resident Of Village Sewa, Tehsil Gangapur City, District Sawai Madhopur.

¶16

Dinesh Son Of Ramswaroop, Resident Of Village Sewa, Tehsil Gangapur City, District Sawai Madhopur.

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Mahesh Chand Son Of Ramswaroop, Resident Of Village Sewa, Tehsil Gangapur City, District Sawai Madhopur.

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(2 of 5)

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[CW-3347/2022]

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Ramsahay Son Of Shankar, Resident Of Village Sewa, Tehsil Gangapur City, District Sawai Madhopur. (Deleted)

¶21

Ramjilal Son Of Shankar, Resident Of Village Sewa, Tehsil Gangapur City, District Sawai Madhopur. (Deleted)

¶22

Babu Devi Widow Of Ramswaroop, Resident Of Village Sewa, Tehsil Gangapur City, District Sawai Madhopur. (Deleted)

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Kamlesh Wife Of Mahadev Prasad, Resident Of Bhopa Ka Khait, Gangapur City, District Sawai Madhopur.

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Land-Holder Tehsildar, Sub-Registrar, Gangapur City, District Sawai Madhopur.

¶25

----Respondents

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For Petitioner(s) : Mr. D.K. Dixit, Adv. For Respondent(s) : Mr. Dinesh Kala, Adv.

¶27

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

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Order

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19/10/2022

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Although, the matter comes on an application (1/2022) filed by the petitioner seeking extension of interim order; but, on the request of the learned counsels for the respective parties, the writ petition was heard on its merit at this stage.

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This writ petition under Article 227 of the Constitution of India is directed against the order dated 27.01.2022 passed by learned Additional District Judge No.1, Gangapur City, District Sawai Madhopur in Civil Suit No. 74/2009, whereby, an application filed by the respondent/plaintiff No.1 under Section 65 of the Evidence Act 1872, has been allowed.

¶32

Relevant facts in brief are that the respondent No.1 filed a suit against the petitioner/defendant No.4 and proforma respondents No.2 to 14/defendants for partition, declaration and

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(3 of 5) [CW-3347/2022]

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permanent injunction. In the suit, the plaintiff claimed himself as also the defendants No. 1,2,3 & 4 as sons of Late Shri Mohan Ji Parashar, a fact which was denied by the petitioner/defendant No.4 in his written statement. The plaintiff, at the stage of defence evidence, moved an application under Section 65 seeking permission of the Court to lead secondary evidence qua coloured photographs allegedly taken in the marriage of respondent No.3 Sudhish Kumar on 04.05.1998. The application has been allowed by the learned trial Court vide order dated 27.01.2022, impugned herein.

¶35

Assailing the order, learned counsel for the petitioner submits that the photographs were not neither entered in the list of documents by the respondent No.1/plaintiff nor, were submitted before framing of the issues nor, during course of his evidence. He submits that, assigning a flimsy reason that negatives of the coloured photographs have been destroyed with the passage of time, the plaintiff moved an application under Section 65 which has erroneously been allowed by the learned trial Court. Inviting attention of this Court towards the order dated 14.05.2019 passed by the learned trial Court, learned counsel submits that on an earlier occasion, a similar application filed by the plaintiff’s brother, i.e., the respondent No.3 under Order 8 Rule 1(3) CPC whereby, he sought permission of the Court to place on record a Digital Video Disc having the video recording of his marriage solemnized on 04.05.1998, was dismissed. He submits that five years thereafter, the plaintiffs has filed the application seeking permission of the Court to lead secondary evidence with regard to coloured photographs of the marriage, which has been allowed the learned trial Court vide order dated 27.01.2022 ignoring this vital

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(4 of 5)

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[CW-3347/2022]

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aspect of the matter. He, therefore, prays that the writ petition be allowed, the order dated 27.01.2022 be quashed and set aside and the application filed by the respondent No.1 under Section 65 of the 1872 be dismissed.

¶39

Per contra, learned counsel for the respondent No.1, drawing attention of the Court towards the Order 7 Rule 14 (4) CPC, would submit that provisions of Rule 14 (1) are not applicable if the document is tendered in evidence for cross-examination. He submits that since, negatives of the coloured photographs got destroyed with passage of time, the learned trial Court did not err in permitting him to lead secondary evidence. He, therefore, prays for dismissal of the writ petition.

¶40

Heard. Considered.

¶41

No reason is forthcoming from the application filed by the respondent No.1 under Section 65 as to why the photographs in question which, indisputably, were in his power and possession on the date of filing of the suit, were neither included in the list of documents nor tendered in evidence during the course of his evidence which started in the year 2016. Even otherwise also, his contention that negatives of the coloured photographs, which are made of plastic, got wasted by efflux of time whereas, the photographs on plain paper survived, does not on its face appear to be logical or acceptable. This Court is not satisfied that conditions pre-requisite for invoking the provisions of Section 65 of th Act, 1872 were existing in the present case so as to allow the application filed by the plaintiff. In view thereof, the order impugned cannot be sustained in the eye of law.

¶42

The writ petition is allowed accordingly. The order dated 27.01.2022 is quashed and set aside. The application filed by the

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(5 of 5)

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[CW-3347/2022]

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respondent/plaintiff No.1 under Section 65 of the Act 1872 stands dismissed.

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(MAHENDAR KUMAR GOYAL),J

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KESHAV GHIYA /197

Mahadev Prasad Son of Late Shri Mohan Ji Parashar v. Adhish Kumar Son of Late Shri Mohan Ji Parashar

Case brief

What is this about?

What did the court decide?

Mahadev Prasad Son of Late Shri Mohan Ji Parashar v. Adhish Kumar Son of Late Shri Mohan Ji Parashar

Case brief

What is this about?

What did the court decide?

What the court decided

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