Rajasthan High Court - Jodhpur
Mahendra Singh vs Dhirender Singh & Ors on 16 August, 2016
Author: Vijay Bishnoi
Bench: Vijay Bishnoi
1
IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AT JODHPUR
---------------------------------------------------
CIVIL WRIT (CW) No. 9259 of 2016
MAHENDRA SINGH
VS
DHIRENDER SINGH & ORS
Date of Order : 16.8.2016
HON'BLE MR. VIJAY BISHNOI,J.
MR. MA SIDDIQUI, for the Petitioner
ORDER
-----
This writ petition has been filed by the petitioner being aggrieved with the order dated 11.07.2016 passed by the Additional District Judge No.2, Jodhpur (for short 'the trial court' hereinafter), whereby the trial court has allowed the application preferred by the respondent No.2 under section 65 of the Indian Evidence Act and allowed him to lead the secondary evidence in respect of certain documents.
Brief facts of the case are that the petitioner filed a suit for cancellation of sale-deed and permanent injunction against the respondents. The respondent No.2 has filed his written statements and along with the said written statements, he has produced certain documents on record and the trial court, after comparing the same from the originals, has kept the photo copy of those documents on 2 record and returned the originals to the respondent No.2.
During the pendency of the suit, the respondent No.2 filed an application under section 65 of the Indian Evidence Act while submitting that though the originals of the documents submitted by him along with his written statements were in his possession but the same were stolen by someone and, therefore, they are now not in his possession, hence, he may be allowed to lead secondary evidence in respect of those documents.
The trial court after hearing counsel for the parties has allowed the application of the respondent No.2 while observing that the original documents, on which the respondent No.2 is relying, are missing and, therefore, the respondent No.2 wants to produce the copies of said documents as secondary evidence. The trial court has observed that since the originals of the said documents have already been compared by the court earlier, therefore, it is appropriate to allow the respondent No.2 to lead secondary evidence in respect of said documents.
Assailing the impugned order, learned counsel for the petitioner has argued that in fact in respect of the documents for which the respondent No.2 has sought to lead secondary evidence, an FIR was filed at Police Station, Ratanada, Jodhpur in the year 2013 while alleging that the said documents were stolen by Narendra Singh and Mahendra Singh, who happened to be the sons of his sister. It is submitted that in the said FIR, the police after 3 thorough investigation has filed the negative final report while concluding that the allegations levelled by the respondent No.2 in the FIR are false. It is further submitted that against the said final report, respondent No.2 had filed a protest petition, however, the same was dismissed by the competent criminal court and the final report submitted by the police was accepted. Learned counsel for the petitioner has, therefore, argued that since the police has concluded that the allegations of theft levelled by the respondent No.2 in respect of the said documents are false, it can be said that the said documents, for which the secondary evidence is sought to be allowed, are very much in possession of the respondent No.2. Learned counsel for the petitioner has further argued that the trial court has not taken into consideration this aspect of the matter and has illegally allowed the application filed by the respondent No.2 under section 65 of the Indian Evidence Act and, therefore, the order passed by the trial court is liable to be set aside.
Heard learned counsel for the petitioner and perused the impugned order as well as the material available on record.
It is true that the police after thorough investigation has concluded that the allegations levelled by the respondent No.2 to the effect that his nephews stole the originals of the documents, for which he sought permission to lead the secondary evidence, are false but from this fact, it cannot be concluded that the originals of the said documents 4 are in possession of the respondent No.2.
Once it is established that the documents, for which permission for leading secondary evidence is sought, are missing, the trial court has not committed any illegality in allowing the application filed by the respondent No.2 under section 65 of the Indian Evidence Act.
Hence, there is no force in this writ petition and the same is hereby dismissed.
Stay petition also stands dismissed.
( VIJAY BISHNOI ),J.
m.asif/PS