- (1.) A suit for partition of the property in question is under adjudication before the trial court. After the demise of defendant No. 1 - Late Maharana Bhagwat Singh on 02.011.1984, respondent No. 2 - Smt. Yogeshwari Kumari is stated to be defendant No. 3/3 and the respondent No. 1 - Arvind Singh, who is defendant No. 4, is also making submission as defendant No. 1/1 in the partition suit. The petitioner-plaintiff Maharana Mahendra Singh Mewar is the eldest son of Late Maharana Bhagwat Singh and the defendant No. 4 i.e. respondent No. 1 in the present petition - Shri Arvind Singh is the legal heir and son of Late Maharana Bhagwat Singh. The petitioner-plaintiff submitted an application under Section 65 of the Indian Evidence Act, 1872 (for short hereinafter referred to as "the Act of 1872") with the prayer that the documents as described in the application be accepted as secondary evidence. The said application was rejected by the trial court vide Order dated 27.10.2014 which is under challenge herein. In his application under Section 65 of the Act of 1872, the petitioner-plaintiff sought to produce covenant dated 18.04.1948 executed between Late Maharana Bhupal Singh Mewar and the Union of India along with inventory of properties, declarations dated 01.04.1969 & 03.01.1972, other declarations dated 18.04.1970 & 20.01.1971, Written Note dated 12.05.1972 executed by Shri A. Subrahmanyam, Private Secretary of Late Maharana Bhagwat Singh Mewar along with cheque dated 03.04.1972 of Vijaya Bank Limited, Udaipur and list of 130 articles inside the jewellery box, order regarding sale of total articles dated 22.10.1955 and order regarding partition of golden and silver ornaments dated 28.10.1955 as the secondary evidence. While praying for setting aside the order impugned and seeking permission to produce the said documents as secondary evidence, learned counsel for the petitioner-plaintiff submitted that the said documents were important and are in the knowledge of the petitioner-plaintiff and they were in the power and possession of the defendant No. 1. Further, the defendant No. 1 had admitted in Para No. 8 of his written statement that the said documents were in his possession and that since they were admitted documents, the trial court should have no objection in allowing the petitioner-plaintiff to produce the copies of the same as secondary evidence. Besides, the respondent No. 1 is also appearing in the capacity of defendant No. 1/1 in the partition suit and is intentionally not producing the same and unfortunately, it was under these circumstances that the petitioner-plaintiff wanted to get exhibited the photo copies of said documents as secondary evidence, which is necessary for proper adjudication of the suit.
(2.) Learned counsel for the respondents while vehemently opposing the present petition submitted that application under Section 65 of the Act of 1872 for producing the documents as mentioned in the application as secondary evidence does not satisfy the conditions of Sections 63 and 65 of Evidence Act, 1872. The said application was not supported by an affidavit. It was also opposed on the ground that the documents were public documents and the petitioner-plaintiff made no effort to obtain either the certified copies of these documents and nor has the petitioner-plaintiff endorsed the said documents that they were copies of the original. They were unsigned typed copies.
(3.) Learned counsel for the parties were heard at length. On account of the nature of the controversy involved, it is necessary to refer to Sections 63 & 65 of the Indian Evidence Act, 1872. The same read as under:-- "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. 65. Cases in which secondary evidence relating to documents may be given.--Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:-- (a) When the original is shown or appears to be in the possession or power-- of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it; (b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest; (c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time; (d) when the original is of such a nature as not to be easily movable; (e) when the original is a public document within the meaning of section 74; (f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in [India] to be given in evidence; (g) when the originals consists of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection. In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.;