1 M.P. No.

4185-2021

IN THE HIGH COURT OF MADHYA PRADESH

AT JABALPUR
BEFORE
HON’BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 2nd OF NOVEMBER, 2022
Misc. Petition No.4185 of 2021

BETWEEN:-
PRAVEEN MALPANI S/O SETH BAL
KRISHNA DAS JI MALPANI, AGED ABOUT 64
YEARS, OCCUPATION: AGRICULTURIST &
BUSINESSMAN, R/O 734, HANUMANTAL,
JABALPUR (MADHYA PRADESH)
.....PETITIONER

(BY SHRI R.K. SANGHI, ADVOCATE)

AND

1. M/S VIJAY ELECTRICALS, A REGISTERED

FIRM, THROUGH ITS PARTNER SHRI VIJAY
KUMAR BHURA S/O MOTILAL BHURA,
ADULT, R/O H.NO.524, MARHATAL
JABALPUR (MADHYA PRADESH)
2. VIJAY KUMAR BHURA S/O MOTILAL
BHURA, ADULT, R/O H.NO.524, MARHATAL,
JABALPUR DISTT. (MADHYA PRADESH)
3. ASHOSK KUMAR BHURA S/O SHRI
KHUSHAL CHAND BHURA, ADULT,
PARTNER OF M/S VIJAY ELECTRICALS, R/O
H NO.524, MARHATAL, JABALPUR
(MADHYA PRADESH)
4. SHRI SUNIL KUMAR BHURA S/O SHRI
NIRMAL KUMAR BHURA, ADULT, PARTNER
OF M/S VIJAY ELECTRICALS, R/O HOUSE
NO.524. MARHATAL, JABALPUR, (MADHYA
PRADESH)
5. MUKESH KUMAR BHURA S/O NOT KNOWN
TO PLAINTIFF, ADULT, PARTNER OF M/S
VIJAY ELECTRICALS, R/O H.NO.524,
 2 M.P. No.4185-2021

MARHATAL JABALPUR (MADHYA

PRADESH)
6. SMT. CHANDANBALA BHURA, W/O LATE
TARA CHAND BHURA, ADULT, PARTNER OF
M/S VIJAY ELECTRICALS, R/O H. NO. 524,
MARAHATAL, JABALPUR (MADHYA
PRADESH)
7. SMT. PRABHA BHURA, W/O LATE ASHOK
KUMAR BHURA, ADULT, PARTNER OF M/S
VIJAY ELECTRICALS, R/O, H NO. 524,
MARAHATAL, JABALPUR (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI SANJEEV KUMAR MISHRA, ADVOCATE)
......................................................................................................
RESERVED ON : 29.08.2022
DELIVERED ON : 02.11.2022
......................................................................................................
This petition coming on for hearing this day, the court
passed the following:
(O R D E R)
With the consent of parties, the petition is finally
heard.
2. This petition is under Article 227 of the
Constitution of India questioning the legality, validity and
propriety of order dated 11.11.2021 (Annexure P/1) whereby
the trial Court rejected the application filed by the petitioner
under Section 151 of the Code of Civil Procedure for calling
the record of the case decided by Judicial Magistrate, First
Class, Jabalpur saying that the documents which have been
referred in the application can be produced by the plaintiff by
 3 M.P. No.4185-2021

getting certified copies of the documents.

3. Learned counsel for the petitioner submits that the
trial Court has not considered the legal position that certified
copies of the private documents are only secondary evidence
and without calling the original, the same cannot be considered
to be a proved document. He further submits that by calling the
record of the trial Court containing the original documents
which are required to be proved, no prejudice would have
caused to the Court or to the party and as such, according to
him, the order rejecting application is contrary to law. He relies
upon various judgments reported in AIR 2014 Orissa 128,
parties being Smt. Baijayanti Nanda Vs. Jagannath
Mahaprabhu Marfat Adhikari Mahanta Bansidhar Das
Goswami and others, 2011(4) M.P.L.J. 140- Haseena Bi Vs.
State of M.P., 2011(3) M.P.L.J. 588- Mamta Awasthy and
others Vs. Ajay Kumar Shrivastava, (2021) 4 SCC 786-
Deccan Paper Mills Company Limited Vs. Regency
Mahavir Properties and Others, AIR 2013 SC 613- V.K.
Sasikala Vs. State and submits that the order passed by the
trial Court, rejecting the application is not sustainable and, it is
liable to be set aside and the application filed by the
petitioner/plaintiff under Section 151 of CPC be allowed and
record of the trial Court be called.
4. Counsel for the petitioner submits that the plaintiff
in his application has contended that there were certain
applications and documents though filed in the present case but
record is required to prove those documents and merely
 4 M.P. No.4185-2021

because certified copies of those documents are obtained, but

those documents cannot be proved and as such record is
required to be called. However, learned trial Court has rejected
the application saying that certified copy would serve the
purpose as record of the court is a public document. Learned
counsel for the petitioner submits that merely because the
certified copies of the documents filed in the Court are obtained
but those documents cannot be said to be a public document
and contents of the documents cannot be proved unless the
original is produced in the Court. He submits that merely
because a document is filed and that has become part of record,
cannot be considered to be a public document.
5. On the other hand, learned counsel for the
respondents has opposed the submission made by learned
counsel for the petitioner/plaintiff and submitted that the
documents which are part of the record of the Court are the
public documents and are not required to be proved with the
original one and as such, application filed by the
petitioner/plaintiff under Section 151 of CPC has rightly been
rejected by the Court. In support of his contention, he has
placed reliance upon the judgment of the Supreme Court in the
case of Jaswant Singh Vs. Gurdev Singh and Others (2012)
1 SCC 425 and on a decision of this Court reported in 2011(3)
M.P.L.J. 100- Jagdish Prasad Vs. Daulatram and Another.
6. Learned counsel for the respondents has also
supported the order passed by the trial Court and placed
reliance upon judgment of Jaswant Singh (supra) wherein the
 5 M.P. No.4185-2021

Supreme Court has observed that the compromise decree

passed as per the terms and conditions of the compromise
between the parties is a public document in terms of Section 74
and, therefore, if certified copy of the said decree is produced,
the same is admissible and is not required to be proved with the
original one. Further reliance is placed in the case of Jagdish
(supra) wherein this Court has observed that certified copy of
the possession receipt is a public document and is admissible in
evidence. In the said case, the observation made by the Court
with regard to possession receipt and as to how it is a public
document has been made in paragraph 12 of the judgment
which reads as under:-
“12. On bare perusal of the possession receipt Exhibit
P-7 this Court finds that it is in consequence to the
warrant of possession (Exhibit P-6) issued against
defendant Baldu, dated 12.1.1972. On the rear side of
this document Exhibit P-6, this Court finds that there
is an endorsement and report of the Bailiff (Process
Server) dated 19.1.1972 that the possession of the
disputed house has been delivered to the plaintiff.
Hence, according to me, the certified copy of the
document of the receipt of possession Exhibit P-7,
which is in consequence to Exhibit P-6 is a public
document.”

7. Considering the submissions made by learned

counsel for the parties and on perusal of record, this Court is of
the opinion that the application filed by the petitioner/plaintiff
under Section 151 of CPC for calling the record of the case i.e.
SCNIA 2228/2006 (M/s. Vijay Electricals and Others Vs.
Central Investment and Industries Ltd. decided on 30.11.2015
by Judicial Magistrate, First Class, Jabalpur should be allowed
 6 M.P. No.4185-2021

for the reason that it was a case of complaint made under

Section 138 of Negotiable Instrument Act, but in a proceeding
initiated by the present petitioner under Section 482 of Cr.P.C.
for quashing the complaint in his respect, this Court in M.Cr.C.
No. 13447/2011 vide order dated 25.08.2015 quashed the same.
However, considering the facts and circumstances of the case, I
am not convinced with the submission made by learned counsel
for the respondents and also the view taken by the trial Court in
rejecting the application of the plaintiff filed under Section 151
of CPC.
8. As per the submission made by learned counsel for
the petitioner and on perusal of record, it is clear that in a
complaint made under Section 138 of the Negotiable
Instrument Act against the present petitioner, certain
applications and documents were filed although certified copies
of the same have been taken but those cannot be considered to
be a public document in view of Section 74(1)(iii) of the Indian
Evidence Act, 1872 (for short, the Act of 1872).
9. This Court dealing with the similar situation in the
case of Mamta Awasthy (supra) has observed as under:-
“8. Section 74 of the 1872 Act which deals with
the public document reads as under:—
“74.Public documents. — The following documents
are public documents:—
(1) Document forming the acts, or records of the
acts—
(i) of the sovereign authority,
(ii) of official bodies and Tribunals, and
(iii) of public officers, legislative, judicial
and executive, of any part of India or of the
 7 M.P. No.4185-2021

Commonwealth, or of a foreign country;

(2) Public records kept in any State of private

documents.”
Perusal of section 74 reveals that the documents which
are record of the acts of the Court are public
documents within the meaning of section 74(1)(iii) of
the 1872 Act. There is distinction between the records
of the acts of the Court and record of the Court. A
private document does not become public document
because it is filed in the Court. To be a public
document it should be record of act of the Court. In the
instant case, admittedly, the partition deed was marked
as exhibit. Marking of an exhibit on the document is
an act of the Court. Thus, the partition deed is record
of the act of the Court and is thus a public document
within the meaning of section 74(1)(iii) of the 1872
Act. Thus, for the aforementioned reasons, it is held
that partition deed dated 2-11-1985 is a public
document within the meaning of section 74(1)(iii) of
the Indian Evidence Act, 1872. Accordingly, the
second issue is answered.”

10. Similar view has also been taken by the High

Court of Orissa in case of Smt. Baijayanti Nanda (supra)
wherein it has observed that plaint is not a public document and
cannot be admitted into evidence and unmarked as exhibit
without proving contents thereof.
11. The Supreme Court in case of Deccan Paper Mills
(supra) has also dealt with the situation and after considering
Section 74 of the Act of 1872 has observed as to which
document can be considered to be a public document and
described as under:-
“22. Let us see whether Section 31(2) makes any
difference to this position in law. According to the
judgment in Aliens Developers [Aliens Developers (P)
8 M.P. No.4185-2021

Ltd. v. Janardhan Reddy, 2015 SCC OnLine Hyd 370 :

(2016) 1 ALT 194 (DB)] , the moment a registered
instrument is cancelled, the effect being to remove it
from a public register, the adjudicatory effect of the
court would make it a judgment in rem. Further, only a
competent court is empowered to send the cancellation
decree to the officer concerned, to effect such
cancellation and “note on the copy of the instrument
contained in his books the fact of its cancellation”.
Both reasons are incorrect. An action that is started
under Section 31(1) cannot be said to be in personam
when an unregistered instrument is cancelled and in
rem when a registered instrument is cancelled. The suit
that is filed for cancellation cannot be in personam
only for unregistered instruments by virtue of the fact
that the decree for cancellation does not involve its
being sent to the registration office — a ministerial
action which is subsequent to the decree being passed.
In fact, in Gopal Das v. Sri Thakurji [Gopal Das v. Sri
Thakurji, 1943 SCC OnLine PC 2 : AIR 1943 PC 83] ,
a certified copy of a registered instrument, being a
receipt dated 29-3-1881 signed by the owner, was held
not to be a public record of a private document under
Section 74(2) of the Evidence Act, 1872 for the reason
that the original has to be returned to the party under
Section 61(2) of the Registration Act, 1908 (see p. 87).
This judgment has been followed in Rekha v.
Ratnashree [Rekha v. Ratnashree, 2005 SCC OnLine
MP 364 : (2006) 1 MP LJ 103] by a Division Bench of
the Madhya Pradesh High Court, in which it was held :
(Rekha case [Rekha v. Ratnashree, 2005 SCC OnLine
MP 364 : (2006) 1 MP LJ 103] , SCC OnLine MP
paras 8 and 9)
“8. A deed of sale is a conveyance. A
deed of conveyance or other document executed
by any person is not an act nor record of an act
of any sovereign authority or of any official
body or tribunal, or of any public officer,
legislative, judicial and executive. Nor is it a
public record kept in a State of any private
documents. A sale deed (or any other deed of
conveyance) when presented for registration
under the Registration Act, is not retained or
9 M.P. No.4185-2021

kept in any public office of a State after

registration, but is returned to the person who
presented such document for registration, on
completion of the process of registration. An
original registered document is not therefore a
public record kept by a State of a private
document. Consequently, a deed of sale or other
registered document will not fall under either of
the two classes of documents described in
Section 74, as “public documents”. Any
document which is not a public document is a
private document. We therefore have no
hesitation in holding that a registered sale deed
(or any other registered document) is not a
public document but a private document.
9. This position is made abundantly clear
in Gopal Das v. Sri Thakurji [Gopal Das v. Sri
Thakurji, 1943 SCC OnLine PC 2 : AIR 1943
PC 83] , wherein the Privy Council considering
the question whether a registered receipt is a
public document observed thus : (SCC OnLine
PC)
‘… It was contended by Sir Thomas
Strangman for the respondents that the
receipt comes within para 2 of Section
74, Evidence Act, and was a “public
document”; hence under Section 65(e)
no such foundation is required as in
cases coming within clauses (a), (b) and
(c) of that section. Their Lordships
cannot accept this argument since the
original receipt of 1881 is not “a public
record of a private document”. The
original has to be returned to the party.…
A similar argument would appear at one
time to have had some acceptance in
India but it involves a misconstruction of
the Evidence Act and the Registration
Act and later decisions have abandoned
it.’
We may also refer to the following passage from
Ratanlal's Law of Evidence (19th Edn., p. 237):
‘Public document [Clause (e)] — This
 10 M.P. No.4185-2021

clause is intended to protect the originals

of public records from the danger to
which they would be exposed by
constant production in evidence.
Secondary evidence is admissible in the
case of public documents mentioned in
Section 74. What Section 74 provides is
that public records kept in any State of
private documents are public documents,
but private documents of which public
records are kept are not in themselves
public documents. A registered
document, therefore, does not fall under
either clause (e) or (f) [of Section 65 of
the Evidence Act, 1872]. The entry in the
register book is a public document, but
the original is a private document.’”
(emphasis in original)
Thus, the factum of registration of what is otherwise a
private document inter partes does not clothe the
document with any higher legal status by virtue of its
registration.”

12. In view of above enunciation of law, it is clear that

merely because documents have been filed in the Court and
those are part of record, it does not mean that those documents
can be treated to be public documents unless exhibited or it is
an act of the Court. There is a distinction between record of the
Court and the record of the acts of the Court as per Section
74(1)(iii) of the Act of 1872. From the submissions made by
learned counsel for the parties and perusal of record, nowhere it
is mentioned that the applications and documents which are
part of record is a record of act of the Court and merely because
certified copies of those documents obtained and filed in the
Court which are admissible, the contents of the same can be
 11 M.P. No.4185-2021

proved by the petitioner/plaintiff on the basis of those certified

copies.
13. Thus, in my opinion, the view taken by the trial
Court is contrary to the legal position and therefore, is not
sustainable in the eyes of law. Accordingly, the order dated
11.11.2021 (Annexure P/1) is hereby set aside. The application
submitted by the petitioner/plaintiff under Section 151 CPC for
calling the record of the Court of case i.e. SCNIA 2228/2006
(M/s. Vijay Electricals and Others Vs. Central Investment and
Industries Ltd. decided on 30.11.2015 by Judicial Magistrate,
First Class, Jabalpur is hereby allowed.
14. Petition is accordingly allowed. No order as to
costs.

(SANJAY DWIVEDI)
JUDGE
rao
Digitally signed by SATYA SAI RAO
Date: 2022.11.03 16:59:58 +05'30'