- (1.) BY this revision application, the applicant, who is plaintiff in suit No.227 of 2006 before the Wakf Board, at Aurangabad has challenged the order passed below Exhibit-71. The said application was moved by respondent No.3 with a request to allow secondary evidence in respect of an application and affidavit filed by the applicant-plaintiff before the respondent No.3. Accordingly, the said application came to be allowed and the application and affidavit are exhibited at Exhibit-90 and 91, respectively by the trial court.
(2.) HEARD. Rule. Rule made returnable forthwith. By consent of the parties, heard finally at the stage of admission. It appears that suit No.227/2006 came to be filed by the present applicant for perpetual injunction restraining present respondents No.1 and 2 from interfering with the peaceful possession of the plaintiff over the property bearing CTS No.12240/34 situated at Baijupura, Indira Nagar, Aurangabad dedicated for Dargah Shanoor Shakkar Gutti Rh and Dargah Jalaluddin Rh. Description of the said property is given in para 1 of the plaint. So far as respondents No.1 and 2 are concerned, they are deleted from this application. It also appears that initially civil revision application was moved before this Court by respondents No.1 and 2 challenging the order of injunction passed by the Tribunal. By order dated 14.07.2009 hearing of the suit was expedited and the parties were directed to maintain status quo. The trial court was directed to dispose of the suit on priority basis on or before 31.12.2009. The said time has already lapsed.
(3.) ADMITTEDLY, though evidence of the applicant is over in the said suit, yet when the turn of defendant No.3 came, an affidavit of examination in chief of one Sanjay Kombade, Junior Engineer, Town Planning Department, came to be filed. Evidence of defendant No.3 is at Exhibit-77. In the evidence copies of letter and affidavit dated 06.05.1997 were tendered and were given Exhibit No.90 and 91. It is admitted by the said witness that the said copies were prepared from zerox copies. It further appears that an application was moved at Exhibit-71 to allow to lead secondary evidence under the provisions of section 63 and 65 of the Indian Evidence Act. The said application came to be allowed on 05.02.2010. The cross examination of the witness was over on 18.02.2010 and the present civil revision application came to be moved on 17.02.2010. It is urged that whether the said documents allowed to be exhibited can be treated as secondary evidence and can be read in the evidence. On the face of it, it appears that the application was decided before the evidence i.e. Cross examination of witness for defendant No.2 was over. In the premise it requires to consider as to whether the said documents can be treated as secondary evidence or not. Section 63 of the Indian Evidence Act is in respect of Secondary evidence, which reads thus - "63. Secondary Evidence - Secondary evidence means and includes. 1) Certified copies given under the provisions hereinafter contained; 2) Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy and copies compared with such copies; 3) Copies made from or compared with the original; 4) Counterparts of documents as against the parties who did not execute them; 5) Oral accounts of the contents of a document given by some person who has himself seen it. Illustrations (a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original. (b) A copy compared with a copy of a letter made by copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original. (c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence, but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original. (d) Neither an oral account of a copy compared with the original, nor an oral account of a photo graph or machine copy of the original, is secondary evidence of the original." ;