Sunday, 10 February 2019

Whether it is necessary to prove documents obtained under right to information Act?

 Even otherwise,
mere marking of documents as exhibits does not amount to
proving the contents thereof. The plaintiffs will have to prove the
contents of the documents. Understood thus, I do not find that
the learned trial Judge has committed any error in passing the
impugned order. Hence, Petition fails and the same is dismissed.
It is, however, expressly made clear that where a decree is
appealed from by the petitioner, any error, defect or irregularity
in the impugned order, affecting the decision of the case, may be
set forth as a ground of objection in the memorandum of appeal
as contemplated by Section 105(1) of C.P.C.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4651 OF 2016

Dr. M.K.Prakash Vs Smt. Snehmala Sapale.

CORAM : R.G.KETKAR,J.
DATE : 24/06/2016



1. Heard Mr. Bipin Joshi, learned counsel for the petitioner and
Mr. Raj Patel, learned counsel for respondents no. 1 to 4 at
length.
2. By this Petition under Article 227 of the Constitution of
India, the petitioner has challenged the order dated 6.2.2016
passed by the learned Judge, presiding over Court room No.11 of
the Small Causes Court at Bombay in R.A.E. Suit No. 1547 of
2014. By that order, the learned trial Judge passed order on
admissibility of the documents produced by P.W.1–plaintiff-3-
Pravin Madhukar Kanekar along with list of documents Exhibit 20.
3. The respondents, hereinafter referred to as 'plaintiffs', have
instituted suit against the petitioner, hereinafter referred to as

'defendant', under section 16(1)(n) of the Maharashtra Rent
Control Act, 1999 (for short, 'Act'), viz. non user of the suit
premises. During the course of evidence of P.W.1, namely,
plaintiff no.3, he produced documents received by the plaintiffs
under Right to Information Act, 2005.
4. Mr. Joshi mainly attacked marking of certified copies at
Exhibits 21 and 22 (1 to 3) on the ground that the information
received under the Right to Information Act, 2005 (for sort, 'R.T.I.
Act') is not a piece of evidence. He further submitted that the
learned trial Judge proceeded on the footing that these are public
documents and, therefore, there is presumption of genuineness
under Section 76 of the Indian Evidence Act, 1872, (for short,
'Act). He relied upon the order dated 13.7.2011 of this Court in
Writ Petition No.5051 of 2011. In that case, officer under R.T.I.
has certified photocopies and they were sought to be produced
before the trial Court at Sr. no. 3 to 11. The learned trial Judge
refused to mark those documents as exhibits. Aggrieved by that
decision, the petitioner instituted the writ petition in this Court.
This Court rejected the petition by observing that the trial Court
has rightly marked the said documents as Articles-X to X-8 for the
purpose of identification and the petitioner will have to prove
these documents by following procedure laid down under the
Act. Relying upon this order, Mr. Joshi submitted that the learned

trial Judge was not justified in marking these documents as
exhibits. He also relied upon the decision of this Court in Rayabai
Dhondiram Vs. The State, 1971 (Vol. LXXIV) Bombay Law
Reporter 505 to contend that certified copies of documents are
not admissible in evidence. Mr.Joshi also relied upon the decision
of this Court in Om Prakash Berlia Vs. Unit Trust of India, All
India Reporter, 1983 Bombay 1 to contend that the certified
copies being secondary evidence, the plaintiffs will have to follow
due process of law for proving the contents thereof.
5. On the other hand, Mr. Raj Patel supported the impugned
order. He relied upon the decision of this Court in Avelino
Rodrigues Vs. Executive Engineer, 2012 (4) Bom.C.R. 371 and in
particulars paragraphs 4 to 7 thereof. He has also produced the
documents which are marked exhibits by the learned trial Judge
for perusal of the Court.
6. I have considered the rival submissions advanced by the
learned counsel appearing for the parties. I have also perused
the material on record. The plaintiffs have sought to produce
documents received under the R.T.I Act. The plaintiffs have
produced certified copies of these documents. It is in that
context that the learned trial Judge observed that as the
documents produced by the plaintiffs are the certified or true
copies from the office record, the presumption of genuineness

under Section 76 of the Act is attracted. In the case of Avelino
Rodrigues (supra), in paragraph 7 it is observed thus:
“7. Upon hearing the learned Counsel and on
perusal of records, the settlement report was a true copy
issued to the petitioners under Right to Information Act. The
said document was issued by the Public Information Officer
of the State Government. The said document has been
obtained by the petitioners by due process of law and as
such the question of petitioners being precluded from
producing the said document does not arise at all. The
relevancy or otherwise of the said document would have to
be considered at the time of appreciating the evidence on
record. It is not open to the learned Judge to go into the
relevancy at this stage when it is not disputed that the
documents were marked for identification. The said
document was marked for identification during the
examination of AW1 and as such, considering that the
petitioners have obtained the certified copy of the said
document from the official record of the State Government,
the learned Judge ought to have permitted the petitioners to
produce the said document and taken the said document on
record.”
7. Mr. Joshi relied upon the decision in Rayabai Dhondiram's
case (supra). In that case, two questions fell for consideration,
namely, (1) whether, in the case of a public document, certified
copies alone are admissible in evidence, or the original is also
admissible in evidence; and (2) whether, if the original is also
admissible in evidence, it must be proved in the same manner as
any other document is required to be proved under sections 67
and 68 of the Act. The learned Single Judge of this Court held
that original of a public document is admissible in evidence. It
was further held that the concluding part of Section 78 of the Act

itself shows that in the case, at any rate, of the public documents
enumerated in that section, the original or a certified copy would
be admissible in evidence. As far as the second question is
concerned, the learned Single Judge held that if the original of a
public document is sought to be tendered in evidence, it must be
proved in the manner required by law. In my opinion, the said
decision does not advance the case of the defendant as it is not
in dispute that the plaintiffs have obtained these documents
under the R.T.I. Act and have produced certified copies.
8. Mr. Joshi relied upon the decision of this Court in
Omprakash Berlia (supra). In that case, the question that fell for
consideration was in the context of a copy of the return of
allotments filed by the 8th defendant-company with the Registrar
of Companies and an extract of the annual Return also so filed,
both certified to be true by the Registrar under S. 610 of the
Companies Act. The said true copy and extract have been
admitted on record as the 1st defendant exhibits at Exhibits 17
and 18. The question was: Is the truth of their contents
established prima facie as the learned counsel for the 1st
defendant contends, or must the truth thereof be proved? After
considering the law on the subject, the learned Single Judge held
in paragraph 27 that the copy and extract (Exhibits 17 and 18)
do not establish, even prima facie, the truth or accuracy or

correctness of the contents of their originals. They prove only
what the contents of their originals are. In my opinion, this
decision also is not helpful to the defendant. Even otherwise,
mere marking of documents as exhibits does not amount to
proving the contents thereof. The plaintiffs will have to prove the
contents of the documents. Understood thus, I do not find that
the learned trial Judge has committed any error in passing the
impugned order. Hence, Petition fails and the same is dismissed.
It is, however, expressly made clear that where a decree is
appealed from by the petitioner, any error, defect or irregularity
in the impugned order, affecting the decision of the case, may be
set forth as a ground of objection in the memorandum of appeal
as contemplated by Section 105(1) of C.P.C.
(R.G.KETKAR, J.)

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