Punjab-Haryana High Court
Tilak Raj vs Janak Raj And Ors. on 6 January, 1998
Equivalent citations: (1998)118PLR858
Author: Swatanter Kumar
Bench: Swatanter Kumar
JUDGMENT Swatanter Kumar, J.
1. This revision petition is directed against the order of the learned trial Court dated 4.1.1997. An application filed by the plaintiff-appellant for permission to lead secondary evidence Under Section 65 of the Indian Evidence Act was allowed and has been impugned in this revision by the defendant in the suit.
2. The facts are that plaintiff and defendant are related to each other, all being heirs of late Haveli Ram. The Punjab Bhoodan Yojna Board was admittedly the owner of the land measuring 32 Kanals 18 Marlas in village Kheowal and the house located thereupon. The Board had granted tenancy rights to deceased Haveli Ram. The copy of the grant deed as well as Jamabandi for the year 1992-93 has been placed on record. During the life time Haveli Ram and sons are stated to be cultivating the entire land. Janak Raj, on the strength of an agreement dated 14.9.1990, the copy of which was annexed to the plaint, brought a suit for declaration and injunction to the effect that the defendant No. 1 be restrained from transferring or alienating the part of the property except more than the share in the property in dispute.
3. This suit was contested mainly by defendant No. 1 who denied this agreement and claimed exclusive possession and ownership being the Gair Maroosi of the entire land. He further founded his claim on the basis of a Will dated 26.6.1987 executed by Haveli Ram in favour of defendant No. 1. During the pendency of the suit the plaintiff filed the present application stating that the agreement dated 14.9.1990 was in possession of the mother of the plaintiff Smt. Kartar Kaur who died and the original compromise has been lost and is not traceable. However, photocopy of the agreement which was available has already been filed on record. In these circumstances prayer was made before the learned trial Court for permission to lead secondary evidence.
4. The application was opposed on the ground that it is a false and fabricated document and the entire story put forward by the applicant was a concocted one and devoid of any truth. The application was allowed by the learned trial Court while relying upon the judgment of this Court in the case Raj Kumar v. Lal Chand, 1994(1) Civil Court Cases, 477.
5. While impugning that order before this Court the submission of the learned counsel for the petitioner is that the case of Raj Kumar (supra) has no application to the facts of the present case. He relied upon the authorities of Jagta v. Ruldu, 1993 P.L.J. 203 and Weston Electronics Limited v. Chand Radio and Ors., (1988-1)93 P.L.R. 690 to argue that the application should not have been allowed by the learned trial Court. The learned counsel for the parties had presented during the course of arguments, the photostat copies of the plaint, written statement and other documents relied upon by them. In paragraph No. 2 of the plaint a specific reference was made to this argument and this argument is the very foundation of the claim of the plaintiff. Copy of this was annexed and the defendant was put at notice with regard to the existence of this agreement. In paragraph No. 2 of the plaint the plaintiff had also stated the contents of the agreement which gives a specific land to each of the plaintiff, and defendants No. 1 to 4 respectively.
6. The defendant No. 1 had denied the execution of this agreement and had raised his claim on the will dated 26.6.1987. The mother and father of the parties are stated to have died in the year 1992. The possibility of the document being lost cannot be ruled out because the photo copy of the agreement was placed on record by the plaintiff right at the first instance. The stamp paper on which the agreement has been written had been purchased under entry No. 6318 of 14.9.1990 from the stamp vendor. This agreement is stated to have been signed by the Sarpanch and the parties. It contains clauses with regard to the land in question as well as the consequences which were to flow in the event of breach.
7. It is a settled principle of law that application to lead secondary evidence must state the existence of the document and its loss subsequent thereto. Once these two ingredients are stated and the court is prima facie satisfied that such a document had existed and it appears to have been lost subsequently, permission to lead secondary evidence to the applicant would be granted. The reliance by the learned trial Court on the judgment of this Court is well founded. In the present case the plaintiff is not taking the defendants by surprise and had produced the evidence in his power and possession right at the first instance before the Court. The ends of justice would demand that a party who has approached the Court must be given a fair chance to prove its case in accordance with law.
8. Permitting a party to lead secondary evidence Under Section 65 of the Indian Evidence Act does not amount per se to the document being admitted in evidence and waiver of its proof. Leave to lead secondary evidence Under Section 65 only give advantage to the applicant to produce in evidence a copy of original document when the original existed and is lost or it satisfies other conditions stated in Section 65 of the Indian Evidence Act. What is a secondary evidence has been clearly stated in Section 63 of the Act and permission to lead secondary evidence cannot be given any meaning larger than the true construction of Sections 63 and 65, of the Act. The execution and contents of the document in accordance with Section 61 of the Act would have to be proved even upon allowing such an application because secondary evidence is only a mode of proving a document, the copy of which is available. In other words, admissibility and mode of proof of the document remains still open and the applicant in the present case would be obliged to discharge his onus on these counts.
9. The reliance by the learned counsel for the respondent on the case of Weston Electronics Limited (supra), is of no consequence because that was a cased of allowing additional evidence under Order 18 Rule 17-A of the Code of Civil Procedure and has no bearing on the present case. The reliance on Jagta case (supra) could hardly be disputed because it was averred that pleadings should be specific with regard to existence and loss of documents. In the present case specific averments have been made in the application but at the same time, this Court cannot loose sight of the fact that these are orders passed at various stages of the suit with an ultimate object of doing complete justice between the parties. These are the kind of orders which do affect the rights of the parties but they cannot by itself are not expected to be concluded like trials.
10. For the reasons stated above, I find no merit in this petition. The same is dismissed. However, there shall be no order as to costs.