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MHSCA20005312018

IN THE COURT OF SMALL CAUSES AT MUMBAI

ORDER BELOW EXHIBIT 63
IN
RENT ACT EVICTION & RECOVERY
(R.A.E. & R.) SUIT NO. 253 OF 2018

Mrs. Mumtaz Narendra Vyas (Deleted)

Ms. Mallika Narendra Vyas .... Plaintiff
V/s.
Messrs Ebrahim Electric Works & Another .... Defendants

Appearance:
Mr. Gaurav Dave, Learned Advocate for the Plaintiff
Mr. Kapil Shetye, Learned Advocate for the Defendants

Coram : Amolkumar A. Deshpande, Judge

Court Room No.7

Date : 24th August, 2023

ORDER:
1. On 21st June, 2023, some of the documents by plaintiff were not
accepted and admitted in evidence. This application for production
of certificate under Section 65B of the Indian Evidence Act, 1872
[hereinafter referred to as the ‘Evidence Act’] is filed by plaintiff. The
application is opposed.
Contentions in the application:
2. The certificate under Section 65B of the Evidence Act was not
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produced earlier due to oversight and inadvertence. Plaintiff herself

clicked those photograph using her cellular phone and therefore, this
affidavit is now produced. The cross-examination is yet to start and
therefore, no prejudice would be caused to defendants, if the
certificate is produced and considered. Moreover, those photograph
be marked as exhibit considering the present affidavit of plaintiff as
compliance of Section 65B of the Evidence Act.
Contentions in the handwritten reply:
3. Defendants object production of certificate and exhibiting the
photograph. The witness stated through her affidavit that,
photograph was taken on 02nd March, 2017 and such date is not
mentioned in the present certificate. On the contrary, the date
mentioned in the certificate is 01st January, 2016.
Hearing of the application:
4. Learned Advocate Mr. Gaurav Dave for plaintiff and learned
Advocate Mr. Kapil Shetye for defendants argued before me.
Reason and decisions:
5. First of all, it must be mentioned here that, defect of not
producing such certificate earlier is held to be curable defect.
Recently, in the case of Arjun Panditrao Khotkar Vs. Kailash
Kushanrao Gorantyal & Others1, the Honourable Supreme Court
specifically observed that, the provision does not speak for stage of
producing such certificate. It is observed and ruled down that, the
certificate in view of Section 65 B of the Evidence Act can be
produced at later stage as well to avoid serious or irreversible
prejudice to the other party. It is also observed that, the Judge
hearing such trial can direct production of such certificate at any
stage, so that, information contained in electronic record can be
1 AIR 2020 SC 4908
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admitted and relied upon in evidence. Therefore, such permission to

produce certificate under Section 65B of the Evidence Act can be
given to plaintiff in light of the aforesaid observations.
6. Coming to accepting the photograph on record, it must be
mentioned that, by order dt. 21 st June, 2023, those photograph at Sr.
No. 11 along-with list at Exhibit 33 were not accepted for want of
such certificate. With reference to these photograph, the assertion of
present witness can be found in paragraph No. 13 of her affidavit at
Exhibit 22. It is correctly pointed out by learned Advocate Mr. Kapil
Shetye that, the date of taking such photograph is mentioned as 2 nd
March, 2017 in the said paragraph of affidavit. Whereas, the
certificate which is produced on record with this application carries
assertion that, the same witness clicked those photograph on 01 st
January, 2016. It is evident that, either of these two statements is
either false or untrue. So even if, the certificate is produced and
accepted on record, the question arises as to whether it deals with
the electronic data concerning to those photograph on record. The
computer output of those photograph does not carry date as integral
part of the same. Therefore, the doubt remains as to whether the
present certificate pertains to those photograph on record.
7. Learned Advocate Mr. Gaurav Dave submitted that the date must
be mentioned due to inadvertence. However, learned Advocate Mr.
Kapil Shetye pointed out that, difference in both dates is material
and can not be casually termed as ‘inadvertence’.
8. This Court finds substance in the contention of learned Advocate
Mr. Kapil Shetye and it is clear that, the certificate relates to
photograph taken on 01st January, 2016. Whereas, photograph at Sr.
No. 11 with list at Exhibit 33 are of 02nd March, 2017 according to
the witness. Therefore, the residue is that, the certificate about
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electronic data concerning to the photograph on record is not

produced. Similarly, the photograph so clicked and printed in view of
the present certificate under Section 65B of the Evidence Act, is not
on record.
9. Therefore, the upcoming order becomes necessary:
ORDER
1. The application at Exhibit 63 is partly allowed.

2. Plaintiff is permitted to produce the certificate under Section

65B of the Indian Evidence Act, 1872 so filed along-with this
application on 04th August, 20223. It be marked with
distinct exhibit for record.
3. However, the photograph along-with list Exhibit 33 at Sr.
No. 11 can not be accepted on the basis of such certificate.

Date: 24th August, 2023 Digitally signed

by AMOLKUMAR
AMOLKUMAR ANILKUMAR
ANILKUMAR DESHPANDE
DESHPANDE Date: 2023.08.28
17:26:34 +0530

(Amolkumar A. Deshpande)
Judge,
Court Room No. 7
Order dictated on : 24.08.2023
Order transcribed on : 24.08.2023
Order checked & signed : 28.08.2023