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Judgment
The petitioner-defendant (hereafter `the defendant') is aggrieved of the order dated 23-4-2018 passed by Additional Civil Judge Keshavraipatan,
District Bundi in suit No.55/2013 allowing the respondent-plaintiff's (hereafter `the plaintiff') application under Section 65 of the Evidence Act for
taking on record the copy of the notice under Section 106 of the Transfer of Property Act, 1872 (hereafter `the Act of 1872') as secondary evidence.
The facts of the case are that the plaintiff filed an application under Section 65 of the Evidence Act for taking as secondary evidence the copy of the
notice under Section 106 of the Act of 1872 sent to the defendant by registered post, which was received by him and acknowledgment of receipt
signed already placed on record. It was submitted that thus the original of the notice in issue was evidently with the defendant and not in the plaintiff's
possession and hence secondary evidence in regard thereto be allowed.
The defendant opposed the application on the ground that as there was no occasion to compare the copy of the notice with the original, it was not
admissible in evidence and the same could not be taken on record as secondary evidence. The defendant denied having received any notice under
Section 106 of the Act of 1872 allegedly sent by registered post or even signing the acknowledgment receipt in regard thereto. Reliance was placed on
the judgment in the case of Smt.J. Yashoda Vs. Smt. K. Shobha Rani [2007(2) WLC (SC) Civil 253].
The trial court considering the submission of both the parties and considering the fact that the plaintiff did indeed sent the notice under Section 106 of
the Act of 1872 to the defendant by registered post, which was received by him as per acknowledgment receipt, which was already placed on record,
the plaintiff was entitled to lead secondary evidence in regard thereto. The judgment in the case of Smt. J. Yashoda (supra) relied upon by defendant
was not found to be applicable in the facts of the case. The trial court therefore allowed taking on record the copy of the notice under Section 106 of
the Act of 1872 as secondary evidence. Hence this petition.
Heard counsel for the defendant and perused the impugned order dated 23-4-2018 passed by the trial court.
Counsel for the petitioner defendant has not been able to make out a case of the impugned order suffering from any perversity or misdirection in law.
The order is well considered and founded on objective consideration of facts on record. The original of the notice under Section 106 of the Act of
1872 will necessarily be with the defendant in view of the acknowledgment receipt of the same signed by him placed on record of the trial court by the
plaintiff. I am in the circumstance in concurrence with the trial court that in the facts of the case the copy of the notice under Section106 of the Act of
1872 required to be taken on record as secondary evidence. No prejudice has been caused to the defendant by taking on record the copy of the notice
under Section 106 of the Act of 1872 which was sent to him through registered post and prima facie receipted. The defendant will be free to lead
rebuttal evidence on the receipt of notice in issue thereon the trial court will assess the probative value of competing evidences and arrive at the
appropriate finding of fact.
The impugned order thus suffers neither from any perversity, patent illegality, misdirection in law or error of jurisdiction to warrant interference by this
court under Article and 227 of the Constitution of India.Â
There is no force in the petition. It is dismissed.