The Allahabad High Court while dismissing the petition observed that photocopy of the sale deed cannot be accepted as surety for the purpose of Section 17 of Provincial Small Cause Courts Act, 1887 read with Section 145 of CPC.
A Single Bench of Justice Neeraj Tiwari passed this order while hearing a petition filed by Raj Kumar @ Rajenda Srivas and 3 Others.
The petition has been filed seeking following reliefs:-
“(a) set aside the judgments and orders dated 21.02.2023 passed by the Additional District and Sessions Judge H.J.S Banda, dismissing the S.C.C Revision No 19/2019, (Raj Kumar @ Rajendra Srivas, now dead through L.Rs, Mohd Kaukab Azim Rizvi and another) and 12.12.2019 passed by learned Civil Judge (Junior Division) Banda rejecting Application 8(Ga) in Misc Case No 49/70/2018 Raj Kumar @ Rajendra Srivas vs Mohd Kaukab Azim and another) and 05.09.2013 passed by the Civil Judge, Junior Division, Banda decreeing ex parte S.C.C Suit No 04/2011 Mohd. Kaukab Azim Rizvi and another vs Raj Kumar Srivas.”
Counsel for petitioners submitted that in case an unregistered sale deed is produced before the Court as surety, same should have been accepted and application 8-C filed to deposit the security in compliance of Section 17 of Provincial Small Causes Court Act, 1887 along with application 4-C under Order 9 Rule 13 of Code of Civil Procedure, 1908 may not be rejected on this ground. Secondly, the photocopy of any document is secondary evidence as per Indian Evidence Act, 1872 therefore, the same cannot be rejected as surety.
He next submitted that finding of the court below that photocopy of the sale deed is not legible is also not correct as in fact the sale deed is very much legible, therefore, finding of Court below is bad.
He assailed this finding before the Revisional Court, but the Court has also not returned any finding upon this ground. There is no compliance of Order 5 Rule 20 of CPC, therefore, the Court may not proceed ex parte without compliance of the provisions of CPC.
The facts of the case is that an earlier Suit was filed which was decided ex parte vide judgment and decree dated 05.09.2013. Upon that, petitioner has preferred application 4-C dated 31.07.2018 under Order 9 Rule 13 of CPC along with same dated application 8-C to deposit the security in compliance of Section 17 of Act, 1887.
The Court has rejected the said application on the ground that a photocopy of the sale deed has been placed, which is not legible and registered. Against the said order, Revision was filed, which was also rejected vide order dated 21.02.2023 with specific finding that photocopy of the unregistered sale deed cannot be accepted as surety.
The Court noted that,
Order of Revisional Court has been challenged basically on the following grounds; first ground is that an unregistered sale deed cannot be rejected, secondly, photocopy of the sale deed is legible and it may also be accepted as surety as it is treated secondary evidence as per Act, 1872.
Now, the issue before the Court is to decide as to whether a photocopy of registered sale deed can be accepted as surety for the purpose of Section 17 of Act, 1887 read with Section 145 of CPC or not.
The Court observed that,
It is apparently clear that for compliance of Section 17 of Act, 1887, surety can be accepted in accordance with the provisions of Section 145 of CPC, which provides enforcement of liability of surety and Section 145(II) of CPC provides furnishing of security of property by sale, which may be sold out to the extent of security, therefore, it is apparently clear that surety should have been of the nature, which may be sold out as and when required. So far as present controversy is concerned, surety so placed before the Court is photocopy of the sale deed on the basis of that, no sale of property can be made, therefore, such surety cannot be accepted.
So far as second argument about photocopy of the document can be accepted as secondary evidence is concerned, it is not a case of evidence, but a case of surety and it should have been of such nature that may be sold out at any point of time either under the orders of Court or as per circumstances. Certainly, on the basis of photocopy of the sale deed, no sale proceeding can be executed, therefore, photocopy of sale deed cannot be accepted as surety. Further, judgments so relied by counsel for petitioners only deals with the acceptances of secondary evidence, therefore, the same are having no relevance in the present controversy.
Considering the facts so mentioned here-in-above, the Court is of the firm view that photocopy of the sale deed cannot be accepted as surety for the purpose of Section 17 of Act, 1887 read with Section 145 of CPC.
“Third issue was about legibility of documents. Once the Court is of the opinion that a photocopy of a sale deed cannot be accepted as surety, therefore, there is no occasion for the Court to give its finding about the legibility of documents.
So far as last argument about Order 5 Rule 20 of CPC is concerned, law is very well settled that in case of deficiency of notice, it has to be raised by the petitioners on the very first instance of the rebuttal and in the case, even in application under Order 9 Rule 13 of CPC, no such averment has been made, therefore, at this stage, same cannot be accepted”, the Court further observed while dismissing the petition.