Punjab-Haryana High Court
Ram Dass vs Dalip Singh & Ors on 16 October, 2014
CR No.1504 of 2013 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
CR No.1504 of 2013 (O&M).
Decided on:-16.10.2014.
Ram Dass. .........Petitioner.
Versus
Dalip Singh and others .........Respondents.
CORAM: HON'BLE MR. JUSTICE DR. BHARAT BHUSHAN PARSOON.
*****
Present:- Mr. S.C. Arora, Advocate for the petitioner.
Mr. Rajesh Girdhar, Advocate for the respondents.
Dr. Bharat Bhushan Parsoon, J.
Receipt dated 12.5.1987 was placed on record and finds duly entered in list of documents (Annexure P-1) appended with the plaint under Order VII Rule 14 CPC. Hoshiar Singh (PW2) examined on 29.9.2010 is the attesting witness of the said receipt (Ex.P4) wherein he had proved the said receipt. When on 26.10.2010, the said attesting witness Hoshiar Singh was recalled for cross-examination, it appeared in his testimony that original receipt was not there and only a photocopy was found on record. Examination-in-chief (Annexure P-2) and cross-examination (Annexure P-3) of Hoshiar Singh (PW2) are appended as below:
Examination-in-chief "I tender into evidence my affidavit which Ex.PW2/A and it may be read as part of my deposition. I have seen the original YAG DUTT 2014.10.17 16:48 I attest to the accuracy and authenticity of this document CR No.1504 of 2013 -2- writing dated 12.5.1987 and I identify my signatures on it. The writing is Mark-P4. (Word mark is written after cutting Ex.). Xxx by Sh. N.D. Diwan, Advocate.
Deferred."
Cross-Examination "I know Ram Dass as he is my co-villager. Dalip Singh and Baljit Singh and also my co-village and as I know them. It is correct that Mark-P4 is not original document. I do not know from whom signatures are Sub Registrar were obtained. It is wrong to suggest that no earnest money was paid in my presence or in the presence of other. It is wrong to suggest that the receipt dated 12.5.1987 has been fabricated. I do not know if the receipt dated 12.5.1987 is attested on 12.5.1989. Kartar Singh scribed and signed in my presence on the photocopy of the receipt. I know the possession of the plaintiff because plaintiff belongs to a village. It is wrong to suggest that Dalip Singh and Baljit Singh did not sign in my presence. It is also incorrect that the document was not read over to me and the other witness. It is also incorrect that I had put my signatures afterwards. It is wrong to suggest that I have given a false affidavit and deposing falsely. I do not know about the alleged agreement. It is wrong to suggest that being co-villager of the plaintiff I have given false evidence. I am not a summoned witness."
2. It is un-understandable as to how the original receipt which was testified to be so on 29.9.2010 by attesting witness Hoshiar Singh turned into a photocopy on the next date when his cross-examination was effected on 26.10.2010.
3. It remains a fact that existence of this document is not disputed. Even during the course of arguments on a matter of application under Order XXXIX Rules 1 and 2 read with Section 151 CPC before the lower court, counsel for the respondents-defendants had made reference to this receipt. The lower court vide order dated 15.6.2010 (Annexure P-6) noticed the contention of respondents-defendants qua this receipt, to the following YAG DUTT 2014.10.17 16:48 I attest to the accuracy and authenticity of this document CR No.1504 of 2013 -3- effect:
"The counsel for the defendants submitted during arguments that a patent sight of this writing shows that it is a fabricated document prepared by taking advantage of the signatures of the defendants on a blank paper. He pointed out that the signatures of defendants No.1 and 2 do not appear on the revenue stamps. Similarly, the writing has been written in such a manner so as to complete it at the signatures of the defendants."
4. No doubt because application for leading secondary evidence of receipt dated 12.5.1987 has been preferred by the petitioner-plaintiff at a belated stage, but the same cannot be rejected on this score because such permission if granted is not to be construed as bestowing immunity from proving this document and establishing its genuineness and sanctity. Probative value of this document is also to be determined by the court.
5. Merely because the petitioner-plaintiff has not been able to disclose as to when the original document was lost and when he had started looking for the same, could not have been a valid ground to reject the request of the petitioner-plaintiff for leading secondary evidence particularly when existence of the original from the list of reliance of documents of the petitioner-plaintiff as also from examination-in-chief of attesting witness thereof recorded on 29.9.2010 is fully proved, but it remains a fact that the original receipt is no more there on the file. In these circumstances, the petitioner-plaintiff is left with no alternative but to lead secondary evidence when loss of original is established from the judicial record itself. This document is foundation of the case of the respondent/plaintiff.
6. Sequelly, reversing the impugned order (Annexure P-5) and accepting this revision petition, application dated 19.4.2012 (Annexure P-4) of the petitioner-plaintiff for leading secondary evidence is allowed.
7. To suffer repetition, it is clarified that the relevance and YAG DUTT 2014.10.17 16:48 I attest to the accuracy and authenticity of this document CR No.1504 of 2013 -4- admissibility of the document as also probative value thereof would be the matters requiring adjudication by the trial court in the facts and given circumstances of the case.
8. The parties are directed to appear before the lower court on 11.11.2014.
(Dr. Bharat Bhushan Parsoon)
October 16, 2014 Judge
'Yag Dutt'
1. Whether Reporters of local papers may be allowed to see the judgment? Yes
2. Whether to be referred to the Reporters or not? Yes
3. Whether the judgment should be reported in the Digest? Yes YAG DUTT 2014.10.17 16:48 I attest to the accuracy and authenticity of this document