# Hari Om Gupta & Anr. Revisionists v. Smt. Jyoti Bhatia

- **Citation:** (2020) 6 ILRA 54
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-06-02
- **Case number:** S.C.C. Revision No. 142 of 2014
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hari-om-gupta-anr-revisionists-v-smt-jyoti-bhatia-45855
- **Pages:** 14

## Headnote

A. Civil Law - Code of Civil Procedure,
1908- Section 115 - The Provincial
Small Causes Courts Act,1887-Section25 & Indian Evidence Act, 1872Section 65- eviction and arrears of rentapplicants were carrying on business on
the suit property, property was let out to
applicants on a monthly rent of Rs.
25,000/-per month for two years-applicants
were to vacate the suit property after the
expiry of the term of the tenancy-notice
was served for termination and claimed of
rent and mesne profit-applicants produced
photocopy of agreement to sell-applicants
failed to reply why they did not produce
original agreement to sell-they only stated
that they possessed the original-ingredients
of Section 65(c) of the Act, 1872 are
6 All. Hari Om Gupta & Anr. Vs. Smt. Jyoti Bhatia
55
lacking-photocopy of the agreement to sell
is not admissible in evidence-payment of
Rs. 13 Lac as sale consideration could not
be proved-no independent evidence on
record
to
support
the
testimony
of
applicants
for
payment-to
recover
the
alleged amount, applicant can sought the
other alternate remedy available to them in
law.(Para 3 to 44)

The revision is dismissed. (E-6)

List of Cases Cited:-

## Text

_Characters 0–39,886 of 47,306. This is a partial read: ask again with offset=39886 for what follows._

54 INDIAN LAW REPORTS ALLAHABAD SERIES
eviction of a lessee after the determination
of his lease and for the recovery from him
of rent or compensation for use and
occupation, the defendant/lessee shall, at or
before the first hearing of the suit, deposit
the entire amount admitted by him to be
due together with interest thereon at the
rate of nine per cent per annum.

13. Explanation-1 defines the expression
'first hearing' which means that the date for
filing written statement or for hearing
mentioned in the summons or where more than
one of such dates are mentioned, the last of the
dates mentioned is the date of first hearing.

14. In the instant case, according to the
revision-applicant, she is not liable to comply
with the requirement of Order XV Rule 5 of
CPC as she is not in use and occupation of the
premises.
The
said
submission
is
not
sustainable for the reason that the issue as to
whether the revision-applicant is in use and
occupation of the property can be decided only
upon the evidence of the parties and not on the
basis of ex-parte version of revision-applicant
that she is not in use and occupation of the
property in question. The requirement of Order
XV Rule 5 of CPC to deposit entire admitted
amount due alongwith interest is statutory
requirement which the revision-applicant has to
comply with as Order XV Rule 5 of CPC does
not contemplate or envisage any situation that
in case tenant is not in occupation and use of the
property in question or has laid set-off claims
against the lessor, the requirement of deposit of
admitted amount due alongwith interest as
provided in Order XV Rule 5 of CPC is not to
be complied with.

15. In view of the aforesaid fact, this
Court is of the opinion that the court below
has not committed any illegality or
jurisdictional
error
in
allowing
the
application under Order XV Ruel 5 of CPC
of respondents-landlord. Consequently, the
revision lacks merit and is dismissed.

15. In view of the aforesaid fact, this
Court is of the opinion that the court below
has not committed any illegality or
jurisdictional
error
in
allowing
the
application under Order XV Rule 5 of CPC
of respondents-landlord. Consequently, the
revision lacks merit and is dismissed.
----------
(2020)06ILR A54
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.06.2020

BEFORE
THE HON'BLE SARAL SRIVASTAVA, J.

S.C.C. Revision No. 142 of 2014

Hari Om Gupta & Anr. ...Revisionists
Versus
Smt. Jyoti Bhatia ...Respondent

Counsel for the Revisionists:
Sri Kiran Kumar Arora

Counsel for the Respondent:
Sri Pradeep Saxena, Sri Ram Pratap Yadav

A. Civil Law - Code of Civil Procedure,
1908- Section 115 - The Provincial
Small Causes Courts Act,1887-Section25 & Indian Evidence Act, 1872Section 65- eviction and arrears of rentapplicants were carrying on business on
the suit property, property was let out to
applicants on a monthly rent of Rs.
25,000/-per month for two years-applicants
were to vacate the suit property after the
expiry of the term of the tenancy-notice
was served for termination and claimed of
rent and mesne profit-applicants produced
photocopy of agreement to sell-applicants
failed to reply why they did not produce
original agreement to sell-they only stated
that they possessed the original-ingredients
of Section 65(c) of the Act, 1872 are
6 All. Hari Om Gupta & Anr. Vs. Smt. Jyoti Bhatia
55
lacking-photocopy of the agreement to sell
is not admissible in evidence-payment of
Rs. 13 Lac as sale consideration could not
be proved-no independent evidence on
record
to
support
the
testimony
of
applicants
for
payment-to
recover
the
alleged amount, applicant can sought the
other alternate remedy available to them in
law.(Para 3 to 44)

The revision is dismissed. (E-6)

List of Cases Cited:-

1. M/s India Umbrella Manufacturing Co. &
ors. Vs Bhagvandei Agrawal thru Legal
Representatives & ors. AIR (2004) SC 1321

2. Dharamaji @ Baban Bajirao Shinde Vs
Jagannath
Shankar
Jadhav
(1994)
AIR
(Bombay) 254

3. Bobba Suramma Vs Peddireddi Chandramma
(1959) AIR AP 568

4. Ekadashi Vs Ganga (1981) AIR All 373

5. Vasanthi Vs Venugupal (Dead) Thru Legal
Representatives (2017) 4 SCC 723

6. Benga Behera & anr. Vs Braja Kishore Nanda
& ors. (2007) 9 SCC 728

7. J. Yashoda Vs K. Shobha Rani (2007) 5 SCC
730

8. Saudul Azeez Vs D.J., Gorakhpur & ors.
(1999) 4 AWC 3213

9. K.B. Saha & Sons Pvt. Ltd. Vs Development
Consultant Ltd. (2008) 8 SCC 564

10. Ratan Lal & ors. Vs Hari Shanker & ors.
(1980) AIR All 180

(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard Sri Kiran Kumar Arora,
learned counsel for the revisionists and Sri
Ram Pratap Yadav, learned counsel for the
respondent.

2. The revision-applicant nos.1 & 2
have assailed the judgement and decree
dated 06.02.2014 passed by Additional
District Judge, Court No.1, Bareilly in SCC
Suit No.7 of 2011 whereby the trial court
has decreed the suit of the respondent.

3. The brief facts of the case are that
respondent (plaintiff) instituted SCC Suit
No.7 of 2011 contending inter alia that she
is the owner of a shop and godown
constructed over an area of 72.5 square
meters
situated
in
Shyamganj,
Rile
Godown, Bareilly (hereinafter referred to
as 'suit property') described at the foot of
the plaint. She has let out the suit property
to revision-applicant nos.1 & 2 (hereinafter
referred to as 'applicants') on a monthly
rent of Rs.25,000/- per month including
taxes. The applicants have been carrying on
business on the suit property in the name
and style of M/s Saraswati Sales. The suit
property was let out to applicants on
25.11.2008 for two years on the condition
that entire rent of the suit property would
be paid in advance by the applicants. The
period of tenancy expired on 24.11.2010.
The applicants were to vacate the suit
property on 25.11.2010 after the expiry of
the term of the tenancy. It is further averred
that the applicants have not paid rent after
24.11.2010 nor they have vacated the suit
property. Consequently, the respondent sent
a notice by registered post terminating the
tenancy which was duly served and
delivered on applicants on 24.01.2011. By
the said notice, respondent also claimed
arrears of rent and mesne profit to the tune
of
Rs.37,500/-
for
the
period
from
25.02.2011 to 07.04.2011.

4. In the aforesaid factual backdrop,
the respondent prayed for a decree of
eviction, arrears of rent amounting to
56 INDIAN LAW REPORTS ALLAHABAD SERIES
Rs.1,12,500/- and future mesne profit @
Rs.25,000/- per month.

5. In the written statement filed by the
applicants, they averred that the respondent
is the co-owner of the suit property since
the suit property was purchased by the
respondent alongwith Radheshyam Bhatiya
and Smt. Prakashi Devi from Smt. Sadhna
Devi by registered sale deed dated
05.05.2004. The applicants denied the rent
of the suit property to be Rs.25,000/- per
month. According to the applicants, rent of
the suit property was Rs.2500/- and no rent
was due on the date of institution of the
suit. It was also pleaded that an agreement
to sell was entered into on 25.11.2008 in
respect of the suit property with the
concurrence of the three co-owners of the
suit property and applicants paid Rs.1 lac
through cheque as advance. It was also
averred that a sum of Rs.13 lac has been
paid to the respondent up till 20.10.2010.
The applicants are ready and willing to pay
the balance sale consideration and purchase
the suit property. The owners of the suit
property became dishonest and refused to
execute the sale deed according to the
agreement to sell dated 15.12.2008.

6. The trial court based on the
pleadings of the parties framed five issues.
The learned counsel for the applicants has
assailed the finding of the trial court on
issue nos.1, 2 & 3, which reads as under:-

"1. क्या ज्योति भातिया तििातिि
संपति की सह भिन स्वातिनी है और िह
प्रतििािीगण की धारा 106 संपति अन्तरण
अतधतनयि के अंिगगि तकरायेिारी सिाप्त कर
सकिी है?

2. क्या प्रतििािीगण तििातिि संपति
िें अंकन 25000/- प्रतििाह के तकरायेिार थे?

3. क्या प्रतििािीगण ने तकराया अिा
करने िें कोई व्यतिक्रि तकया है?"

7. On issue no.1, the trial court by
placing reliance upon the judgement of
Apex Court in the case of M/s India
Umbrella Manufacturing Co. & Others
Vs. Bhagvandei Agrawal through Legal
Representatives & Others AIR 2004 SC
1321 held that the respondent is co-owner
and suit is maintainable at the behest of the
respondent. The trial court further held that
since the photocopy of the agreement to
sell was filed and the original was not filed,
therefore, it is not admissible in evidence. It
also noticed the statement of DW-1 Hari
Om Gupta, (applicant no.1) wherein he
admitted that the original agreement to sell
is in his possession but he did not give any
reason for not filing the original copy of the
agreement to sell. Consequently, the trial
court disbelieved the execution of the
agreement to sell.

8. Issue nos.2 & 3 were jointly
decided by the trial court and after
appreciating the evidence on record, it
found the rent of the suit property was
Rs.25,000/- per month.

9. Challenging the aforesaid findings
learned counsel for the applicants has
contended that though applicants were
initially inducted as the tenant, after the
execution of the agreement to sell dated
15.12.2008, the applicants continued in the
possession
of
the
suit
property
in
furtherance of the agreement to sell.
Accordingly, he submits that since the
preconditions of Section 53A of Transfer of
Property Act, 1882 (hereinafter referred to
as 'T.P. Act') are satisfied, therefore,
applicants are entitled to the protection of
Section 53A of T.P. Act. In support of his
6 All. Hari Om Gupta & Anr. Vs. Smt. Jyoti Bhatia
57
aforesaid contention, he has placed reliance
upon following judgements:-

(i).
Dharamaji
alias
Baban
Bajirao Shinde Vs. Jagannath Shankar
Jadhav 1994 AIR (Bombay) 254;

(ii).
Bobba
Suramma
Vs.
Peddireddi Chandramma 1959 AIR (AP)
568;

(iii). Ekadashi Vs. Ganga 1981
AIR (All) 373.

10. His further submission is that
even if applicants did not file the suit for
the enforcement of agreement to sell, the
relationship
of
landlord
and
tenant
extinguished on the execution of the
agreement to sell, hence, the suit is not
maintainable because of Section 15 read
with Entry 4 of Second Schedule of
Provincial of Small Causes Courts Act,
1887 (hereinafter referred to as 'Act, 1887').

11. He further contends that trial court
has erred in disbelieving the agreement to
sell on the ground that the photocopy of the
same
was
filed
since
according
to
applicants, photocopy of the agreement to
sell is secondary evidence, therefore, in the
absence of original agreement to sell, the
trial court ought to have accepted the
photocopy of the agreement to sell. He
further contends that agreement to sell,
though not registered, can be read in
evidence for collateral purposes because of
the proviso to Section 49 of The
Registration Act, 1908 (hereinafter referred
to as 'Act, 1908').

12. It is further urged by learned
counsel for the applicants that finding of
the trial court in respect of rent of the suit
property to be Rs.25,000/- per month is
illegal and against the record since the
amount of Rs.6 lakhs paid through cheques
on various dates was towards the advance
in respect of the purchase of the suit
property, besides Rs.7 lakhs paid in cash
towards advance for the purchase of the
property, therefore, finding of the trial court
that Rs.6 lakhs paid through cheques for
the payment of rent of two years @
Rs.25,000/- per month is erroneous and not
sustainable in law.

13. Per contra, learned counsel for the
respondent contends that the applicants have
failed to establish that agreement to sell
fulfils all the prerequisites of Section 53A of
T.P. Act, therefore, the applicants are not
entitled to the protection of Section 53A of
T.P. Act. In support of his contention, he has
placed reliance upon the judgement of Apex
Court in the case of Vasanthi Vs. Venugupal
(Dead) Through Legal Representatives 2017
(4) SCC 723.

14. He further contends that as per the
statement of DW-1 Hari Om Gupta (applicant
no.1), the original agreement to sell is in his
possession and he did not give any reason for
not producing the same, therefore, the
conditions envisaged in Section 65 of the Indian
Evidence Act, 1872 (hereinafter referred as
'Act,1872') to lead secondary evidence to prove
a document do not exist in the instant case,
therefore, the trial court has rightly held that
photocopy of original agreement to sell is not
admissible in evidence. He further contends that
the photocopy of the agreement to sell is not
secondary evidence, for this reason also, it
cannot be read in evidence. In support of his
aforesaid submission, he has placed reliance
upon the judgement of Apex Court in the case
of Benga Behera and Another Vs. Braja
Kishore Nanda and Others (2007) 9 SCC 728.

15. He further urges that if a document is
inadmissible in evidence, it cannot be read in
evidence
even
for
collateral
purposes.
58 INDIAN LAW REPORTS ALLAHABAD SERIES

16. I have considered the rival
submissions of the parties and perused the
record.

17. To appreciate the argument of
learned counsel for the applicants that they
are entitled to protection under Section 53A of the T.P. Act, it would be useful to refer
Section 53-A of the T.P. Act which reads as
under:-

"53A. Part performance.--Where
any person contracts to transfer for
consideration any immoveable property by
writing signed by him or on his behalf from
which the terms necessary to constitute the
transfer can be ascertained with reasonable
certainty,

and the transferee has, in part
performance
of
the
contract,
taken
possession of the property or any part
thereof, or the transferee, being already in
possession, continues in possession in part
performance of the contract and has done
some act in furtherance of the contract,

and the transferee has performed
or is willing to perform his part of the
contract,

then, notwithstanding that where
there is an instrument of transfer, that the
transfer has not been completed in the
manner prescribed therefor by the law for
the time being in force, the transferor or
any person claiming under him shall be
debarred from enforcing against the
transferee and persons claiming under him
any right in respect of the property of which
the transferee has taken or continued in
possession, other than a right expressly
provided by the terms of the contract:

Provided that nothing in this
section shall affect the rights of a transferee
for consideration who has no notice of the
contract or of the part performance
thereof."

18. The apex court in the case of
Vasanthi
(supra)
laid
down
three
prerequisites to exist to claim the benefit of
Section 53A of T.P.Act. Paragraphs 18 &
25 of the said judgement are being
extracted herein below:-

"18. As would be patent from the
above
quotes,
the
protection
of
a
prospective purchaser/transferee of his
possession of the property involved, is
available
subject
to
the
following
prerequisites:

(a) There is a contract in writing
by
the
transferor
for
transfer
for
consideration of any immovable property
signed by him or on his behalf, from which
the terms necessary to constitute the
transfer can be ascertained with reasonable
certainty;

(b) The transferee has, in part
performance
of
the
contract,
taken
possession of the property or any part
thereof, or the transferee, being already in
possession, continues in possession in part
performance of the contract;

(c) The transferee has done some
act in furtherance of the contract and has
performed or is willing to perform his part
of the contract.

25. This Court in Shrimant
Shamrao Suryavanshi and another vs.
Pralhad Bhairoba Suryavanshi by Lrs. and
others (2002) 3 SCC 676, while tracing the
incorporation of Section 53A in the TP Act,
vide
Act
of
1929,
acting
on
the
recommendations of the Special Committee
on the issue, had ruled that mere expiration
of the period of limitation for bringing a
suit for specific performance would not
debar a person in possession of an
immovable property by way of part
performance from setting up a plea, as
contemplated therein in defence to protect
his possession of the property involved. It
6 All. Hari Om Gupta & Anr. Vs. Smt. Jyoti Bhatia
59
was however underlined that if the
conditions precedent, as enumerated, in
Section 53A of the Act, are complied with,
the law of limitation would not come in the
way of the said person to avail the benefit
of the protection to his possession as
extended thereby even though a suit for
specific performance of a contract by him
had gone barred by limitation. Explicitly
therefore, though mere expiry of the period
of limitation for a suit for specific
performance may not be a bar for a person
in possession of an immovable property in
part performance of a contract for transfer
thereof for consideration to assert the
shield of Section 53A of T.P. Act, it is
nevertheless imperative that to avail the
benefit of such protection, all the essential
pre-requisites therefor would have to be
obligatorily complied with.

19. The Court, now, proceeds to
analyze whether the preconditions to claim
the benefit of Section 53A of T. P. Act
exists in the present case to entitle the
applicants for protection of Section 53A of
T. P. Act.

20. According to applicants, an
agreement to sell was executed between the
applicants and respondent on 25.11.2008 in
respect of the suit property for the purchase
of it for a sale consideration of Rs.23 Lacs,
and that the terms and conditions of the
agreement to sell are explicit and distinct
from which the terms necessary to
constitute a transfer can be ascertained.

21.

The
applicants
had
filed
photocopy of the agreement to sell based
on which he asserts to seek the protection
of
Section
53A
of
T.P.Act.
Before
proceeding to peruse the terms and
conditions of the contract to find out
whether it contains the necessary terms to
constitute a transfer, the first question to be
considered is whether the trial court was
justified in disbelieving the photocopy of
the agreement to sell as the essential
conditions to attract 65 of Act,1872 were
lacking. At this stage, it would be apt to
refer paragraph 9 of the affidavit of
applicant no.1 wherein he has stated about
the filing of the photocopy of the
agreement
to
sell
dated
15.12.2008.
Paragraph 9 of the affidavit is reproduced
hereinbelow:-

"9. यह तक तििातिि िुकान िय
कोठरी को बेचने का इरािा िीनों सहस्वातियों
श्रीििी ज्योति भातिया, राधेश्याि भातिया ि
श्रीििी प्रकाशी िेिी का हुआ इस पर शपथकिाग
की पत्नी ने इस िुकान िय कोठरी को खरीिने
की इच्छा जातहर की. इस बाि पर िीनों सह
स्वातियों ि श्रीििी सुशीला गुप्ता (पत्नी
शपथकिाग)
के
बीच
एक
इकरारनािा
िुहायिािय तिनांतकि 15.12.2008 तनष्पातिि
हुआ तजस पर श्रीििी ज्योति भातिया, राधेश्याि
भातिया, श्रीििी प्रकाशी िेिी ि श्रीििी सुशीला
गुप्ता ने अपने हस्ताक्षर शपथकिाग के सिक्ष
तकये और शपथकिाग ने भी बिौर गिाह अपने
िस्तखि
तकये
तिर
इस
इकरारनािा
िुआहायिािय को नोिरी पब्लिक श्री अनूप
कुिार कोहरिाल एडिोकेि के द्वारा सत्यातपि
कराया गया. इस इकरारनािा िुहायिािय
तिनांतकि 15.12.2008 की सत्य िोिोस्टेि कॉपी
नोिरी द्वारा सत्यातपि इस शपथ पत्र के द्वारा
संलग्नक-1 के रूप िें िाब्लखल की जा रही है
पत्रािली पर भी इस इकरारनािा िुहायिािय
की सत्य िोिोकॉपी पेपर न. 27/ग है. इस
इकरारनािा
िुहायिािय
के
सम्बन्ध
िें
शपथकिाग ि उसकी पत्नी सक्षि न्यायालय बरेली
िें तितध अनुसार कायगिाही करेंगे."

22. The applicant no.1 in his crossexamination has categorically stated that he
has the original agreement to sell, but he
60 INDIAN LAW REPORTS ALLAHABAD SERIES
has not filed the same and he cannot
explain the reason for not filing the original
copy of the agreement to sell. The relevant
extract
of
the
cross-examination
of
application
no.1
is
reproduced
hereinbelow:-

"...िैंने िूल िुहायिा िय िाब्लखल नहीं
तकया है. िैं िूल िुहायिा िय िाब्लखल न करने
का कारण नहीं बिा सकिा. िूल एग्रीिेंि िेरे
पास है..."

23. It is pertinent, at this point, to
refer a few provisions of the Indian
Evidence Act, 1872. Section 61 of the Act,
1872 deals with proof of contents of
documents, which states that the contents
of a document may be proved either by
primary or by secondary evidence.

24. Section 62 defines primary
evidence. Primary evidence means the
document itself produced for the inspection
of the Court.

25. Section 63 provides for secondary
evidence which reads as under:-

"63.
Secondary
evidence.--
Secondary evidence means and includes--

(1) Certified copies given under
the provisions hereinafter contained1;1;"

(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."

26. Section 65 deals with the
eventualities in which secondary evidence
relating to a document may be given.
Section 65 is quoted hereinbelow:-

"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 1 [India]
to be given in evidence2; 1[India] to be given
in evidence2;"

(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.
6 All. Hari Om Gupta & Anr. Vs. Smt. Jyoti Bhatia
61

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.

In case (g), evidence may be given
as to the general result of the documents by
any person who has examined them, and who
is skilled in the examination of such
documents."

27. It is trite law that a party must first
adduce primary evidence to prove a document
and only in eventualities elucidated in Section
65 (a) to (g), secondary evidence can be
adduced to prove the existence, conditions or
contents of a document.

28. The statement of applicant no.1 is
crystal clear on the point that the original
agreement to sell is in his possession. At this
point, it would be relevant to refer the
judgement of the Apex Court in the case of
Benga Behera and Another (supra) wherein
respondent in SLP applied for grant of Letters
of Administration based on Will allegedly
executed in his favour by one Sarajumani Dasi
on or about 15.01.1982, the Apex Court held
that a document on which the title rest is
required to be proved by primary evidence, and
if the original document is lost or destroyed,
secondary evidence may be given under
Section 65 (c) of the Act, 1872 and loss of
original document is required to be proved for
the admissibility of secondary evidence.
Paragraph 31 & 32 of the judgement are being
extracted herein below:-

"31. A document upon which a
title is based is required to be proved by
primary evidence, and secondary evidence
may be given under Section 65(c) of the
Evidence Act. The said clause of Section 65
provides as under:

"65. (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."

Loss of the original, therefore,
was required to be proved.

32. In a case of this nature, it was
obligatory on the part of the first
respondent to establish the loss of the
original Will, beyond all reasonable doubt.
His testimony in that behalf remained
uncorroborated."

29. In the instant case, the case of the
applicants can fall in Section 65 (c) of the
Act, 1872. It is clear from the reading of
Section 65(c) that secondary evidence of a
document is admissible only when the
party desirous of proving a document by
Secondary evidence proves by cogent
evidence that the original document is lost
or destroyed or is not in his possession and
that he made best effort to procure the
production of it but failed. Thus, the party
has to account for the non-production of the
said document in one of the ways indicated
in the said section. This necessarily implies
that the party, who wants to give secondary
evidence, has to lay down the factual
foundation to establish the right to give
secondary evidence where the original
document cannot be produced.

30. Another question which crops up
in the light of the submission of the
respondent
whether
photocopy
of
a
document is Secondary evidence, in this
regard, it would be relevant to refer to the
judgement of the Apex Court in the case of
J.Yashoda Vs. K. Shobha Rani (2007) 5
SCC 730 wherein it has been held that
62 INDIAN LAW REPORTS ALLAHABAD SERIES
photocopy cannot be admitted as secondary
evidence. Paragraphs 7 & 9 of the
judgement are being extracted herein
below:-

"7. 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.

9. The rule which is the most
universal, namely that the best evidence the
nature of the case will admit shall be
produced, decides this objection that rule
only means that, so long as the higher or
superior evidence is within your possession
or may be reached by you, you shall give
no inferior proof in relation to it. Section
65 deals with the proof of the contents of
the documents tendered in evidence. In
order to enable a party to produce
secondary evidence it is necessary for the
party to prove existence and execution of
the original document. Under Section 64,
documents are to be provided by primary
evidence. Section 65, however 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 the Section. In Ashok Dulichand v.
Madahavlal Dube and Another [1975(4)
SCC 664], it was inter alia held as follows:

"After
hearing
the
learned
counsel for the parties, we are of the
opinion that the order of the High Court in
this respect calls for no interference.
According to clause (a) of Section 65 of
Indian Evidence Act, Secondary evidence
may be given of the existence, condition or
contents of a document when the original is
shown or appears to be in 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 of any person legally
bound to produce it, and when, after the
notice mentioned in Section 66 such person
does not produce it. Clauses (b) to (g) of
Section
65
specify
some
other
contingencies wherein secondary evidence
relating to a document may be given, but
we are not concerned with those clauses as
it is the common case of the parties that the
present case is not covered by those
clauses. In order to bring his case within
the purview of clause (a) of Section 65, the
appellant filed applications on July 4,
1973, before respondent No. 1 was
examined as a witness, praying that the
said respondent be ordered to produce the
original manuscript of which, according to
the appellant, he had filed Photostat copy.
Prayer was also made by the appellant that
in case respondent no. 1 denied that the
said manuscript had been written by him,
the photostat copy might be got examined
from a handwriting expert. The appellant
also filed affidavit in support of his
applications. It was however, nowhere
stated in the affidavit that the original
document of which the Photostat copy had
been filed by the appellant was in the
possession of Respondent No. 1. There was
also no other material on the record to
indicate the original document was in the
possession
of
respondent
no.1.
The
appellant further failed to explain as to
what were the circumstances under which
the Photostat copy was prepared and who
6 All. Hari Om Gupta & Anr. Vs. Smt. Jyoti Bhatia
63
was in possession of the original document
at the time its photograph was taken.
Respondent No. 1 in his affidavit denied
being in possession appeared to the High
Court to be not above suspicion. In view of
all the circumstances, the High Court to be
not above suspicion. In view of all the
circumstances, the High Court came to the
conclusion that no foundation had been
laid by the appellant for leading secondary
evidence in the shape of the Photostat copy.
We find no infirmity in the above order of
the High Court as might justify interference
by this Court."

31. In the case of Saudul Azeez Vs.
District Judge, Gorakhpur and Others
1999 (4) AWC 3213, this Court has held
that a photocopy of a document cannot be
admitted in evidence. Paragraphs 9 to 12
are being extracted herein below:-

"9. In the present case, there is
nothing to indicate that the alleged
photocopy was prepared from the original
or that it was not prepared from a copy of
the original, or that it was compared with
(he original if prepared from a copy
compared with the original. In the absence
of any material, it cannot be treated to be a
secondary evidence. It is only orally being
claimed to be a photocopy without claiming
that what was photographed was the
original or that it was compared with the
original. Admittedly, it is not a certified
copy.

10. Now secondary evidence is
permitted only in certain circumstances. It
cannot come in automatically as in the case
of primary evidence. In order to allow
secondary
evidence,
certain
tests
as
provided in Section 65 and procedure as
provided in Section 66 of the Evidence Act
are to be satisfied and complied with, as
the case may be. Inasmuch as Section 64 of
the said Act prescribes that documents must
be proved by primary evidence. Exception
to this rule is permitted only in cases as
provided in Section 65 read with Section 66
of the said Act.

11. Section 65 of the Act permits
secondary evidence (a) when the original is
shown or appears to be in the possession or
power of (i) the person against whom the
document is sought to be proved, or (ii) any
person out of reach of, or not subject to. the
process of the Court, or (iii) any person
legally bound to produce it. and when after
the notice mentioned -in Section 66 such
persons mentioned in (i), (ii), (iii) 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 parly offering is unable to
produce it in reasonable time for reason not
arising from his own default or neglect; (d)
when the original is such that it is not
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 certified copy is
permitted to be given in evidence either by
Evidence Act or by any other law in force
in India: (g) when the original consists of
numerous accounts or other documents
which cannot be conveniently examined by
the Court, and the fact to be proved is the
general result of the whole collection.

12. The present case does not fit
in clause (d). (e), (f) and (g). It. however,
could come within clause (a), (b) and (c).
But as observed earlier. In the facts and
circumstances of the case, it does neither fit
in clause (a) nor (b) nor (c). The applicant
has not made out any case which could
come within the scope and ambit of either
of the clauses (a), (b) and (c) of Section 65
of the Act. Therefore, the photocopy cannot
64 INDIAN LAW REPORTS ALLAHABAD SERIES
be relied upon even as a secondary
evidence."

32. In the present case, no factual
foundation has been laid by the applicants
for giving secondary evidence to prove the
agreement to sell and the applicant no.1
admits in his cross-examination that he is in
possession of the original agreement to sell.
Further, there is no averment either in the
written statement or in the affidavits of the
applicants that the photocopy of the
agreement to sell was prepared from the
original or compared with the original.
Therefore, from the above facts and law
laid down in the above-referred cases that
photocopy of a document is not the
secondary evidence, it is manifest that
necessary ingredients of Section 65 (c) of
the Act, 1872 are lacking in the present
case. Therefore, the view of the trial court
that photocopy of the agreement to sell is
not admissible in evidence is not erroneous
and the agreement to sell cannot be proved
by leading Secondary evidence.

33. The judgement relied upon by the
counsel for the applicants of this Court in
the
case
of
Ekadashi
(supra)
is
distinguishable on the fact since in the said
case the benefit of Section 53-A of T.P. Act
was extended to the defendant, who had
preferred the second appeal before this
Court, on
the
ground
that
all
the
preconditions for claiming the benefit of
53-A were present.

34. The other judgement relied upon
by the counsel for the applicants Bobba
Suramma (supra) also reiterates the law
that to avail the benefit of Section 53A of
T.P. Act, essential prerequisites of Section
53A must be present and established. In
this case, the plea of the appellant seeking
protection of Section 53A of T.P. Act was
rejected by Andhra Pradesh High Court by
affirming the judgement of the trial court
and appeal court decreeing the suit of
plaintiff-respondent for possession against
the defendant-appellant, who claimed the
possession of the suit property under an
agreement to sell. Thus, the said judgement
is also of no help to the applicants.

35. The judgement of Dharmaji Alias
Baban Bajirao Shinde (supra) has also
been rendered in a different factual context.
The Bombay High Court also reiterated
that if the preconditions of Section 53A of
T.P. Act are complied with, the transferee
cannot be denied the protection of Section
53A of T.P. Act on the pretext that
document is unregistered. However, it
dismissed the appeal since as per the
admission of plaintiff-appellant, he was not
in the possession of the suit property. So
this judgement also does not come in aid to
the applicants.

36. Since the photocopy of the
agreement to sell cannot be accepted to
prove
its
execution,
therefore,
the
precondition to avail the benefit of Section
53A of T.P.Act that there should be a
contract in writing by the transferor
(respondent in the instant case) in respect
of the suit property for consideration from
which the terms necessary to constitute the
transfer can be ascertained with reasonable
certainty is lacking in the present case.
Accordingly, it is held that the applicants
are not entitled to the protection of Section
53A of the T. P. Act and the suit for eviction
of the respondent is maintainable and not
barred by Section 15 read with Entry 4 of
the Second Schedule of Act, 1887.

37. To appreciate the argument of
counsel
for
the
applicants
that
unregistered agreement to sell can be
6 All. Hari Om Gupta & Anr. Vs. Smt. Jyoti Bhatia
65
relied on for collateral purposes, it
would be necessary to consider ambit of
the word 'collateral purposes/collateral
transaction' referred in the proviso to
Section 49 of the Act 1908. Section 49
of
the
Act
1908
is
reproduced
hereinbelow:-

"49. Effect of non-registration
of documents required to be registered.-
-No document required by section 17
1[or by any provision of the Transfer of
Property Act, 1882 (4 of 1882)], to be
registered shall--

(a)
affect
any
immovable
property comprised therein, or

(b) confer any power to adopt, or

(c) be received as evidence of any
transaction affecting such property or
conferring such power, unless it has been
registered:

[Provided that an unregistered
document affecting immovable property
and required by this Act or the Transfer of
Property Act, 1882 (4 of 1882), to be
registered may be received as evidence of a
contract in a suit for specific performance
under Chapter II of the Specific Relief Act,
1877 (3 of 1877) 55, 56 [***] or as
evidence of any collateral transaction not
required to be effected by registered
instrument.]

State Amendment Uttar Pradesh:

In section 49,--

(i) in the first paragraph, after
the words "or by any provision of the
Transfer of Property Act, 1882" insert the
words "or of any other law for the time
being in force",

(ii) substitute clause (b) as under:
"(b) confer any power or create any right
or relationship, or",

(iii) in clause (c), after the words
"such power", insert the words "or creating
such right or relationship",

(iv) in the proviso, omit the words
"as evidence of a contract in a suit for
specific performance under Chapter II of
the Specific Relief Act, 1877, or". [Vide
Uttar Pradesh Act 57 of 1976, sec. 34
(w.e.f. 1-1-1977)]."

38. In this regard, it would be apt to refer
to the judgement of the Apex Court in the case
of K.B. Saha and Sons Private Limited Vs.
Development Consultant Limited (2008) 8
SCC 564 wherein Apex Court in paragraph 34
of the judgement has laid down when an
unregistered document can be read in evidence
for collateral purposes. Paragraph 34 of the said
judgement is being extracted hereinbelow:-

"34. From the principles laid down
in the various decisions of this Court and the
High Courts, as referred to hereinabove, it is
evident that :-

1. A document required to be
registered is not admissible into evidence under
Section 49 of the Registration Act.

2. Such unregistered document can
however be used as an evidence of collateral
purpose as provided in the Proviso to Section
49 of the Registration Act.

3. A collateral transaction must be
independent of,
or
divisible
from,
the
transaction to effect which the law required
registration.

4. A collateral transaction must be a
transaction not itself required to be effected by a
registered document, that is, a transaction
creating, etc. any right, title or interest in
immoveable property of the value of one
hundred rupees and upwards.

5.