Photocopy Of Sale Deed Cannot Be Accepted As Surety U/s. 17 Of Provincial Small Causes Court Act: Allahabad HC

The Allahabad High Court has held that the photocopy of the sale deed cannot be accepted as a surety under Section 17 of the Provincial Small Causes Court Act, 1887.

A Single Bench of Justice Neeraj Tiwari noted, “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. … this 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."

Advocate Ramendra Asthana appeared on behalf of the petitioners.

In this case, the counsel for petitioners submitted before the Court that in case an unregistered sale deed is produced before the Court as surety, the same should have been accepted and the application filed to deposit the security in compliance with Section 17 of the 1887 Act may not be rejected on this ground. Secondly, he submitted that the photocopy of any document is secondary evidence as per Indian Evidence Act, and therefore, the same cannot be rejected as surety.

He next contended that the 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. He assailed such a finding before the Revisional Court, but the Court did not return any finding upon this ground.

The High Court in the above context observed, “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.”

The Court while dealing with the last issue regarding Order 5 Rule 20 of CPC said that the 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 that in the present case, even in application under Order 9 Rule 13 of CPC, no such averment has been made, therefore, at this stage, the same cannot be accepted.

Accordingly, the Court dismissed the plea.

Cause Title- Raj Kumar @ Rajenda Srivas and 3 Others v. Mohd. Kaukab Azim Rizvi and Another (Neutral Citation: 2023:AHC:123211)

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