Punjab-Haryana High Court
Ram Pal Singh And Anr. vs Syndicate Bank on 2 March, 2000
Equivalent citations: AIR2000P&H296, (2000)126PLR135, AIR 2000 PUNJAB AND HARYANA 296, (2000) 1 CURLJ(CCR) 361, (2000) 4 ICC 532, (2000) 126 PUN LR 135
Author: Swatanter Kumar
Bench: Swatanter Kumar
ORDER Swatanter Kumar, J.
1. Challenge in this revision is to the order dated 24-5-1999 passed by the learned Civil Judge (Junior Division), Faridabad.
2. Syndicate Bank had filed a suit for recovery of Rs. 41,985/- against the defendants. The suit was contested by the defendants on various grounds including the plea of limitation. During the pendency of the suit, application dated 1 -9-1999 was filed by the plaintiff, respondent herein for leading secondary evidence in regard to "acknowledgment of debt dated 25-9-1990". This application was opposed by the defendants (present petitioners), who contended that the application was not maintainable and was abuse of process of the Court. It was contended that the prayer of the applicant had been declined on an earlier occasion by the Order of the Court dated 24-5-1999.
3. It was the case of the bank the original acknowledgment has been placed on Court's record but it was misplaced. Vide its earlier application, the bank had made prayer as under :--
"It is therefore, prayed that office of this Hon'ble Court be directed to search the acknowledgment debt of 25-9-90 and if the same Is not traceable then photocopy of the same be allowed to be proved by way of secondary evidence.
ii) That if original is not traceable then FIR be got registered and enquiries be got made through police that who removed the original documents and punished according to law."
4. This application was dismissed by the learned trial Court, vide its order dated 24-5-1999, while passing the following order:--
"For the reasons recorded above, it is ascertained that said document is lost from the Court fee. Hence the application of the applicant is hereby dismissed."
5. As is clear from language of the order dated 24-5-1999 the learned trial Court did not deal with the contention of the applicant that it should be granted leave to lead secondary evidence. The reading of order dated 24-5-1999, copy of which has been annexed to this petition as well, makes further clear that neither parties argued that aspect of the matter nor was it determined or decided even impliedly by the Court. Photocopy of the acknowledgment allegedly signed by the defendants has already been placed on record and counsel for the petitioner during the course of hearing of this petition also produced the copy of the same before this Court. In other words, photocopy of the original document is on record and as alleged by the applicant the same has been misplaced. The date with regard to its execution and existence has been stated in the application.
6. After hearing learned counsel for the parties, vide impugned order the learned trial Court allowed the said application and permitted the bank to leade secondary evidence in relation to the acknowledgment of debt dated 25-9-1990.
7. Learned counsel appearing for the petitioners while relying upon the judgment of this Court in the case titled as Kaila Devi v. State of Haryana. 1999 (1) Pun LJ 585, contended that the application was barred by principles of res judicata. No doubt, the principle of res judicata, in its extended form, is applicable to the stages of the suit but necessary ingredient is that such controversy ought to have been decided by the Court of competent jurisdiction. Undisputedly order dated 24-5-1999 did not even impliedly decide the said controversy. Needless to point out that right of the petitioners to object to the mode of proof of the document would be open during the course of trial.
8. For the reasons aforestated, this petition is dismissed in limine, as I see no error of Jurisdiction or otherwise in the impugned order.