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Judgment
Petitioner has preferred this writ petition praying for the following reliefs :-
i) By an appropriate writ, order or direction, the order passed by the learned Trial Court i.e. by the learned Senior Civil Judge and
Additional Chief Judicial Magistrate No.3, Bikaner dated 22.2.2017 (Annex-7) may kindly be declared illegal and be quashed and
set aside.
ii) By an appropriate writ, order or direction, the application filed by the petitioner under Section 65 of the Evidence Act, 1872 may
kindly be allowed and the copy of the registered sale deed dated 26.4.1993 (Annex.-5) may kindly be taken on record and may be
treated as admissible in evidence under Section 65 of the Evidence Act, 1872.
iii) Any other appropriate order or direction which this Hon''ble Court may deem just and proper in the facts and circumstances of the
case may kindly be passed in favour of the petitioner. iv) Costs of the writ petition may kindly be awarded to the petitioners.
The suit in question is regarding possession of a premises of Shop No.5 and also the proposition of mesne profits between the parties. The only
proposition before this Court is whether the certified copy of the registered sale deed is admissible as a secondary evidence under Section 65 of
the Evidence Act, 1872 or not.
Learned counsel for the petitioners has drawn attention of this Court to Section 65(e) of the Evidence Act, which reads as follows :-
(e) when the original is a public document within the meaning of Section 74,
3.1 Learned counsel for the petitioners has further drawn attention of this Court to Section 57 of the Registration Act, 1908, which reads as
follows :-
Validity of certificate or endorsement in respect of instruments for which higher rate of duty is payable in Rajasthan - Notwithstanding anything
contained in the Indian Stamp Act, 1899 (Act No. 2 of 1899), no certificate or endorsement thereunder in respect of an instrument chargeable in
the State of Rajasthan with a higher rate of duty under this Act, shall be received in evidence, or be, in any way, valid, in respect of the payment of
duty on such instrument unless the duty chargeable at the rates, provided in this Act has been paid, on such instrument.
3.2 Learned counsel for the petitioners has further drawn attention of this Court to Section 74(2) of the Evidence Act, 1872, which reads as
follows :-
74(2) public records kept in any State of private documents.
3.3 Learned counsel for the petitioners has thus laid foundation of his arguments on the premises that a registered sale deed is a public record of
private documents and admittedly falls within the definition of public documents to Section 74(2). Keeping of private documents in public record is
explained in Section 57 of Registration Act, 1908. Learned counsel for the petitioners thereafter submitted that as per Section 65(e), secondary
evidence can be given of the documents in the cases when the original is a public document within the meaning of Section 74.
3.4 Learned counsel for the petitioner has cited the judgment of this Court in the matter of Gopinath Educational & Welfare Society vs. Rajendra
Singh Shekhawat (HUF) (S.B. Civil Writ Petition No.17458/2015) decided on 04.03.2016, the relevant portion of this judgment, reads as under
:-
I have given my anxious consideration to the rival submissions and carefully examined the material on record as well as judgments cited by learned
counsel for the parties.
Judgment of Madhya Pradesh High Court in Smt. Rekha Rana & Others(supra), on which learned counsel for the petitioner has placed reliance, in
fact, supports case of the respondent because Clause (a), (b) and (c) of Section 65 of the Evidence Act are not attracted in the present situation
and Clause (e) of Section 65 of the Act would be applicable to the present case which inter alia provides that secondary evidence may be given of
the existence, condition and contents of a document when the original is a public document within the meaning of Section 74 of the Evidence Act.
Section 74 of the Evidence Act includes the documents forming the acts, or records of the acts; (i) of the sovereign authority; (ii) of official bodies
and the tribunals, and (iii) of public officers, legislative, judicial and executive, (of any part of India or of the Commonwealth), or of a foreign
country. Sub-section (2) of Section 74 of the Evidence Act provides for public records kept in any State of private documents.
In Smt. Rekha Rana & Others(supra), the questions that were referred to the Division Bench for answer were whether certified copy of a
registered sale deed obtained from the office of Sub Registrar is a public document and whether the same may be received in evidence as a public
document without any proof of document by primary evidence, as required under Section 64 of the Evidence Act. The Division Bench of Madhya
Pradesh High Court made the following observations:
We have already held that a certified copy of a registered instrument/document issued by the Registering Officer, by copying from Book I, is a
certified copy of a public document. It can therefore be produced in proof of the contents of the public document or part of public document of
which it purports to be a copy. It can be produced as secondary evidence of the public document (entries in Book I), under Section 65(e) read
with Section 77 of the Act without anything more. No foundation need be laid for production of certified copy of secondary evidence under
Section 65(e) or (f). But then it will only prove the contents of the original document, and not be proof of execution of the original document. (Vide
Section 57(5) of Registration Act read with Section 77 of Evidence Act.). This is because registration of a document is proof that someone
purporting to be ''X'' the executant admitted execution, but is not proof that ''X'' executed the document. We will elaborate on this aspect when
dealing with Point No. (iv).
17.The position therefore is that a certified copy of a sale deed issued by the Registering officer under the Registration Act can be produced and
marked as secondary evidence of a public document (that is Entries in Book I maintained under Section 51 of the Registration Act containing the
copy of the registered document). Such certified copy issued by the Registration officer in view of the certificates copies therein and the certificate
made while issuing the certified copy will prove (i) that a document has been presented before the Registration Officer for registration; (ii) that
execution had been admitted by the person who claimed to be the executant of the document and (iii) that the document was thereafter registered
in the Registration Office and entered (copied) in Book I. It is not however proof of the fact that original sale deed was duly executed by the actual
person described as Executant. Production of a certified copy of a public document under Section 65(e) or production of a certified copy under
Section 65(f) is completely different from production of a certified copy as secondary evidence of a private document (for eg. a sale deed under
clauses (a), (b) and (c) of Section 65.
It is in this context that while answering the first question, the Division Bench in aforementioned case held that production and marking of a certified
copy as secondary evidence of a public document under Section 65(e) of the Evidence Act need not be preceded by laying of any foundation for
acceptance of secondary evidence. This is the position even in regard to certified copies of entries in Book I under Registration Act relation to a
private document copied therein. Single Bench of Madhya Pradesh High Court in Jamna Prasad & Others(supra) repeated the same view by
taking note of Sections 51, 52, 55 and 57 of the Registration Act. Section 57(5) of the Registration Act in particular is worthy to mention which
inter alia provide that all copies given under this section shall be signed and sealed by the registering officer, and shall be admissible for the purpose
of proving the contents of the original documents. The Single Bench of Madhya Pradesh High Court in the aforesaid case in para 20, 24 and 25
observed as under:
It is, therefore, clear that a person proposing to give secondary evidence by invoking clauses (a), (b) and (c) of Section 65 of the Evidence
Act, has to first lay a foundation to the effect that the document is not in his possession and has not been produced inspite of a notice by the person
who is in possession of the same; that the existence, condition or contents of the original have been proved to be admitted in writing or that the
original has been destroyed, lost or cannot be produced, respectively. It is further clear from a perusal of Section 65(e) and (f) that the aforesaid
requirement, which are prescribed in Section 65 (a), (b) and (c), are not required to be established when the person seeks to give secondary
evidence by producing a certified copy of a document alone and no other kind of secondary evidence of a document which is a public document
within the meaning of Section 65(e) of the Evidence Act or by giving a certified copy of a document alone and no other kind of secondary
evidence of a document which is a certified copy of an original permitted by the Evidence Act or by any other law to be given in evidence under
Section 65(f) of the Evidence Act as the preconditions mentioned in Section 65(a), (b) and (c) of the Evidence Act cannot be read into Section
65(e) or (f) by any stretch of statutory interpretation.
24.In view of the aforesaid analysis I am of the considered opinion that while a sale deed perse is a private document but once it is registered and
entered in Book-I by the Registering Officer under Section 51 of the Registration Act, the records thereof maintained by such Registering Officer is
a public document as defined by Section 74 of the Evidence Act and, therefore, a certified copy of the same can be given as secondary evidence
of the existence, condition or contents of the same.
Quite apart from the above, it is also clear from a perusal of the provisions of Section 57 of the Registration Act, that books and indexes
maintained under the provisions of the Registration Act are open to inspection by any person at all times and copies of entries in such books and
indexes shall be given to all persons applying for such copies with the sign and seal of the registering officer and that all such certified copies
bearing the sign and seal of the registering officer shall be admissible for the purpose of proving the contents of the original documents. On a
conjoint reading of the provisions of Section 57(5) of the Registration Act alongwith the provisions of Sections 65(f) and 76 of the Evidence Act, it
becomes clear that a certified copy of the sale deed which is compulsorily required to be registered and entered in the books and indexes
maintained under the Registration Act, issued under the sign and seal of the registering officer, is permitted by the aforesaid section i.e. Section
57(5) of the Registration Act and Section 65(f) of the Evidence Act, to be given in evidence of the content of the document apart from and in
addition to the fact that certified copies of public documents can also be given in evidence under Section 65(e) of the Evidence Act.
The Supreme Court in Madamanchi Ramappa and another(supra) also held that if the document is certified copy of public document it need not be
proved by calling a witness. Gauhati High Court in Md. Saimuddin Sheikh(supra) held that certified copy of sale deed maintained in Sub-
Registrar''s office is admissible in evidence. On this very issue, the Supreme Court in Tukaram S. Dighole(supra) in para 17 of the judgment made
following observations:
17..................... However, clause (e) of Section 65, which enumerates the cases in which secondary evidence relating to documents may be
given, carves out an exception to the extent that when the original document is a ""public document"" secondary evidence is admissible even though
the original document is still in existence and available. Section 74 of the Evidence Act defines what are known as ""public documents"". As per
Section 75 of the Evidence Act, all documents other than those stated in Section 74 are private documents. There is no dispute that certified copy
of a document issued by the Election Commission would be a public document.
In view of above, it is very evidently clear from the provisions of Section 57 of the Registration Act that the books and indexes maintained under
the said Act are open to inspection by any other person applying to inspect the same and copies of entries in such books shall be given to all
persons applying for such copies which shall be signed and sealed by the registering officer and all such certified copies containing signatures and
seal of registering officer would be admissible for the purpose of proving the contents of the original documents. If Section 57(5) of the Registration
Act is read with Section 65(f) and 76 of the Evidence Act it becomes clear that a certified copy of the sale deed or lease deed which is
compulsorily required to be registered and entered in the books and indexes maintained under the Registration Act, issued under the sign and seal
of the registering officer, is permitted by the aforesaid section, i.e. Section 57(5) of the Registration Act and Section 65(f) of the Evidence Act, to
be given in evidence of the contents of the document apart from and in addition to the fact that certified copies of public documents can also be
given in evidence under Section 65(e) of the Evidence Act. No doubt, a sale deed or lease deed is a private document, but once it is registered
and entered in Book-I by the Registering Officer under Section 51 of the Registration Act, the records thereof maintained by such Registering
Officer becomes a public document as defined by Section 74 of the Evidence Act and therefore, a certified copy of the same can be given as
secondary evidence of the existence, condition or contents of the same.
Relied judgment of the Supreme Court in J. Yashoda(supra) arise out of a case where the High Court found that the photocopies cannot be
received as secondary evidence in terms of Section 63 of the Evidence Act. Original was alleged to be with a third party. The Supreme Court held
that secondary evidence, as a general rule, is admissible only in the absence of primary evidence. If the original itself is found to be inadmissible
through failure of the party, who files it to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contents.
Essentially, secondary evidence is an evidence, which may be given in the absence of that better evidence, which law requires to be given first,
when a proper explanation of its absence is given. Section 65 of the Evidence Act permits secondary evidence to be given of the existence,
condition or contents of documents under the circumstances mentioned. The conditions laid down in the said section must be fulfilled before
secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without nonproduction of the original
being first accounted for in such a manner as to bring it within one or other of the cases provided for in that section.
Judgment of the Supreme Court in Dr. Gurmukh Ram Madan(supra) is also distinguishable on the facts of the present case because therein
certified copy of a registered deed produced by the plaintiffappellant in support of his claim was not admitted by the trial court in evidence on the
ground that absence of the original document had not been duly accounted for. The Supreme Court held that the document not a public document
and it could not have been let in evidence except after explanation as to the nonavailability of the original in an appropriate manner. The explanation
offered by the appellant therein that the original document had been withdrawn by the respondent from the office of the Sub Registrar concerned,
on facts, was not found to be convincing. It was further held that in the ordinary course of probabilities, the original document should have been in
custody of the appellant in whose favour it had been executed. The plaintiff in that case was denied benefit of Section 65(f) of the Evidence Act.
That observation of the Supreme Court was based on the evidence of one of the witnesses D.W. Sadanand, who stated before the court that
original was torn out and this was disclosed to him by the appellant himself. The aforesaid observation was thus rendered by the Supreme Court in
the facts of that case where the original document was shown to be in custody of the appellant and the evidence also proved that the original
document was torn out by him. None of the other judgments of the Supreme Court on the scope of Section 65(e), (f) and 74 of the Evidence Act
viz-a-viz Sections 51 and 57 of the Registration Act has been considered by the Supreme Court in the aforesaid two judgments.
In view of above discussion, this Court does not find any infirmity in the impugned order passed by the Tribunal and the same is upheld. The writ
petition, being devoid of merits, is hereby dismissed.
Learned counsel for the respondents has, however, relied upon another judgment of this Court in the matter of Jagdish Giri vs. Smt. Dhanni Devi
(S.B. Civil Writ Petition No.2608/2017) decided on 20.11.2017, the relevant portion of this judgment, reads as under :-
Mr. Sushil Bishoni, learned counsel appearing for the petitioner assailing the order dated 03.02.2017 contended that the registered
sale deed and the power of attorney both cannot be said to be public documents which as a matter of fact, are private documents,
executed between the two parties. He submitted that these documents do not fall within the scope and ambit of public documents. He
added that the entries made in the register as contemplated under Section 57 of the Registration Act may fall within the ambit of
public record and thus certified copies of such entries may be treated to be a public document, but not the sale deed and the power
of attorney, even after registration.
Mr. Bishoni, in this regard relied upon a judgment of this Court rendered in S.B. Civil Writ Petition No.836/2008 titled as ""Nathmal
Vs. Urban Improvement Trust, Bikaner & Ors."", reported in AIR 2009 (Raj) 60 and contended that in view of the law laid down by
this Court, the documents in question are not public documents and secondary evidence of such documents is not permissible, despite
the same being certified copies.
Mr. Girish Joshi, learned counsel appearing for the respondents has not been able to point out any judgment contrary to the judgment
in case of Nathmal (supra) and submitted that instead of contesting the matter here, his clients stand advised to take appropriate
proceedings, requiring production of original documents by petitioner as envisaged under the provisions of Evidence Act and the
Code of Civil Procedure, 1998.
He conceded the position of law and submitted that the matter be disposed of in terms of the judgment aforesaid.
In view of above, the writ petition is allowed, the order dated 03.02.2017 to the extent of permitting the secondary evidence in
respect of two documents out of the documents tendered by the plaintiffs; namely registered sale deed dated 31.01.2014 and general
power of attorney dated 04.03.2014 is quashed and set-aside.
Needless to observe that the plaintiffs shall be permitted to take appropriate proceedings in accordance with law.
As the plaintiff No.1 is reported to be in twilight of her life,being 80 year''s of age; it would be in the fitness of things, to direct the
Trial Court to decide the suit expeditiously. Hence, Trial Court is directed to decide the suit as early as possible, preferably within a
period of eighteen months from today.
4.1 On the same premise, learned counsel for the respondents has also cited following citations :-
(i) U.Shree vs. U.Srinivas reported in 2017(1) WLC (SC) (Civil) 106.
(ii) Hukmichand Mosun. vs. Kushal Chand reported in 2017(4) WLC (Raj.) 74.
(iii) M/s. Electromechanical Engineering Corporation vs. Addl. District Judge No.1, Alwar reported in 2013(1) WLC (Raj.) 773.
(iv) Gordhan Lal Agarwal vs. Mali Ram Modi reported in 2013(2) WLC (Raj.) 131.
(v) H.Siddiqui (Dead) by LRs. vs. A.Ramalingam reported in 2011(1) WLC (SC) 475.
This Court after hearing the learned counsel for the parties, is of the opinion that the per incuriam law permits a Court to follow an earlier
judgment of the same bench strength if it has not been considered in the subsequent judgment and admittedly, the judgment cited by the counsel for
the petitioners is of 4.3.2016 and the subsequent judgment cited by counsel for respondents is dated 20.11.2017. Moreover, apart from
maintaining judicial discipline and following the per incuriam law, this Court also finds that Section 74 of the Evidence Act clearly defines public
documents and Section 74(2) clearly stipulated that private documents which are kept as public records by the State shall form public documents.
This Court also finds that all the public documents defined under Section 74 are admissible as secondary evidence under Section 65(e) of the
Evidence Act which is a clear position on a bare reading of law. The learned Court below has moved on a premise that the certified copy of
registered sale deed is not a public document on the basis of Hon''ble Madhya Pradesh High Court''s judgment in Smt. Rekha Rana & Ors. vs.
Smt. Ratnashree Jain reported in AIR 2006 M.P. 107 which is dealt with in the judgment which this Court has followed i.e. Gopinath Educational
& Welfare Society (supra) and reproduced as aforesaid.
Thus, the impugned order dated 22.2.2017 passed by the learned Senior Civil Judge and Additional Chief Judicial Magistrate No.3, Bikaner is
quashed and set aside and the learned Court below is directed to take the certified copy of the registered sale deed submitted by the petitioners as
secondary evidence in terms of Section 65(e) of the Evidence Act.
The present writ petition is allowed in the above terms.