Jaswant Singh And Another vs Sardar Nirmal Singh And Others

This petition under Article 227 of the Constitution of India has been filed against the order dated 27.09.2019 passed by fourth Civil Judge, Class-II, Gwalior in Civil Suit No. 215-A/2017, by which the application filed by the petitioners under Section 65 read with Section 66 of the Evidence Act has been rejected.

The necessary facts for disposal of the present petition in short are that the petitioners had filed a suit for partition and permanent injunction claiming that the disputed property is an ancestral property of their grand father and the petitioners have equal share and right in the property. Respondents filed their written statement and denied the plaint averments. Thereafter, the petitioners filed an application under Order 16 Rule 1 and 6 of CPC seeking a direction to the revenue department for calling the record of Khasra entries of Samvat 2007, 2008 year 1954-55, Samvat 2020-23 and year 1983-84 till 1986-87 and 1989-90. It was claimed that the revenue department has refused to supply the said documents on the ground that the same is tattered and, accordingly, the application was filed. However, by order dated 02.11.2018 the petitioners were given liberty to file the secondary evidence. It appears that the petitioners filed an application under Section 65 read with Section 66 of the Evidence Act, which has been rejected primarily on the ground that since an application does not disclose all the conditions as required under Section 63 of the Evidence Act, therefore, the documents filed along with the application do not come within the definition of secondary evidence.

Challenging the order passed by the Court below, it is submitted by the counsel for the petitioners that the applications are drafted by the lawyers and the petitioners are not law graduate and have no knowledge about the technicalities of law and because of poor draftsmanship of their counsel, they may not be made to suffer.

The submission made by the counsel for the petitioner appears to be correct. Once the petitioners were granted liberty by the Trial Court to lead secondary evidence, then the lawyer of the petitioners must have file the application under Section 65 of the Evidence Act strictly in accordance with law. However, there appears to be some lapses in the application as all the necessary ingredients, which are required as per the provision of Section 63 of the Evidence Act, were not mentioned, therefore, it is clear that the counsel for the petitioners is right in submitting that for the poor draftsmanship of the counsel, they may not be made to suffer. However, no illegality in the impugned order could be pointed out by the counsel for the petitioners.

Counsel for the petitioners prayed for liberty to file a fresh application under Section 65 / 66 of the Evidence Act after fulfilling all the requirements of Section 63 of the Evidence Act.

Considered the submissions made by the counsel for the petitioners.

From the impugned order dated 27.09.2019, it is clear that the application filed by the petitioner under Section 65 /66 of the Evidence Act has been rejected on the ground that the said application is not in accordance with the provisions of Section 63 of the Evidence Act.

Under these circumstances, the prayer made by the counsel for the petitioners for liberty to file a fresh application appears to be bona fide. It is directed that in case, if the petitioners file a fresh application under Section 65 / 66 of the Evidence Act for leading secondary evidence, then the same shall be reconsidered by the Trial Court without getting affected by the order dated 27.09.2019. It is made clear that this liberty is being granted purely on humanitarian ground so that the petitioners may not suffer because of the poor draftsmanship of their counsel.

Since this order is being passed without issuing any notice to the respondents, therefore, in case, if the respondents feel aggrieved by this order, then they may file an application for recall of this order.

With the aforesaid liberty, the petition is disposed of.