Punjab-Haryana High Court
Shangara Singh vs Jawala Singh on 6 November, 1992
Equivalent citations: (1993)103PLR171
JUDGMENT G.C. Garg, J.
1. This revision petition is directed against the order of the trial Court dated May 22, 1992 whereby an application filed by the plaintiff to prove an agreement by way of secondary evidence was dismissed.
2. The plaintiff filed a suit for specific performance on the basis of an agreement dated October 3, 1984 executed by the defendant in his favour. An application for permission to produce secondary evidence to prove the said agreement was filed by the plaintiff on the ground that the agreement was not traceable despite search and the same had been lost in the house and that the production thereof in the Court was beyond his control. The prayer of the plaintiff was opposed by the defendant on the plea that the plaintiff had seat a registered notice to him and in the notice the plaintiff had not mentioned that the agreement had been lost. Besides, the defendant denied the execution of the agreement in question.
3. The trial Court while relying upon the observations of this Court in Hira and Anr. v. Smt. Gurbachan Kaur, (1988-2) 94 P. L. R. 173, dismissed the application by observing that photostat copy of the entry in the register of the petition writer, produced in Court, had blurred thumb impression of the defendant and was not decipherable.
4. After hearing learned counsel for the parties, I am of the view that the revision petition deserves to succeed The trial Court has acted illegally and with material irregularity in coming to the above conclusion. The agreement to sell, the original of which is alleged to have been lost, is the original of which is alleged to have been lost, is sought to be proved by the plaintiff by producing an entry in the petition writer's register, the photostat copy whereof was produced to show prima facie the existence of the agreement in question A look at the photostat copy of the entry in the petition writer's register does not prima facie show that the thumb impression of Jawala Singh is affixed in such a manner that it is not decipherable. The trial Court had no occasion to have a look on the original thumb impression and thus could not opine on the basis of photostat copy that it was not decipherable. It is for the expert on the subject to compare the thumb impression in the petition writer's register with the standard and admitted thumb impression of Jawala Singh and then to opine if it was of Jawala Singh or not or the same is not decipherable. It was too early for the trial Court to give its opinion on this aspect of the matter.
5. Even otherwise, it has no where been found that loss of the original agreement has not been proved. It is stated in. the plaint itself that the original agreement has been lost. The suit was fixed for evidence of the plaintiff for March 26, 1992 after framing of issues on January 11, 1992. The application for producing secondary evidence was moved on March 3, 1992. The photostat copy of the entry in the petition writer's register shows that it perhaps contains the entire gist of the agreement to sell. The reliance placed by the trial Court on Hira's case (supra) does not help the defendant in any manner.
6. It is not the requirement of law that the loss of an original document should be proved in absolute terms before a party is permitted to produce secondary evidence, to prove it. Secondary evidence is permissible when the original document has been destroyed or lost or when the party offering evidence of its contents cannot, for any reason not arising from his own default or neglect, produce it in reasonable time. It is in this context that the loss of a document is not required to be proved in absolute terms The Court while granting permission to lead secondary evidence does not pronounce on the evidentiary value to be attached to the secondary evidence. An opportunity is allowed to a party to produce secondary evidence only to prove that the document in fact existed and what were the contents thereof. As already noticed above, a photostat copy of the entry in the petition writer's register had been produced by the plaintiff, which apparently bears the thumb impression of the defendant and gist of the agreement entered into between the parties. The only contention of the learned counsel for the defendant's that the agreement is dated October 3, 1984 arid the suit was filed in May, 1991 and this in itself is a sufficient ground to decline the prayer of the plaintiff to produce secondary evidence. 1 see no force in this contention. What evidentiary value is to be attached ultimately, to the evidence produced in the case is a matter for the trial Court to consider. In the instant case the only question is whether the petitioner has made out a case for permission to lead secondary evidence. As noticed above, the petitioner in my view has been able to do so.
7. For the reasons stated above, the revision petition succeeds and is allowed, The order under revision is set aside and the application for permission to lead secondary evidence is allowed, The trial Court is directed to proceed further in the matter in accordance with law. No costs.