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2000 DIGILAW 9 (CHH)

DUM RAM v. BHANWARLAL

2000-11-27

R.S.GARG

body2000
R. S. GARG, C. J. ( 1 ) BY this petition under Section 115 of Code of Civil Procedure, petitioner seeks to challenge the correctness, validity and propriety of the order dated 4. 1. 1999, passed in Civil Suit No. 20-A/92 by the learned Civil Judge, Class-I, Raigarh, rejecting the petitioner's application filed under Section 65 of the Indian Evidence Act and refusing to grant permission to prove the document dated 16. 5. 1966 by leading secondary evidence. ( 2 ) THE facts in nutshell are that non-applicant No. 1 Bhanwar Lal filed Civil suit before the trial Court inter-alia pleading that the property in dispute, which is in possession of the present applicants, belongs to him and he is entitled to declaration that the sale-deed executed by Haldhar/defendant no. 3/non-applicant does not bind him. ( 3 ) PRESENT applicants/defendants No. 1 and 2 submitted that the property was purchased by them from Haldhar and as such the plaintiff Bhanwar Lal has no right, title or interest in the property. Haldhar-defendant No. 3 in his turn submitted in his written statement that the property in dispute originally belongs to one Jagannath, from whom it was suceeded by Ramdayal and thereafter Haldhar's father narmada Prasad sold the property to him. He also submitted that the sale-deed dated 16. 5. 1966 was executed in his favour by his father, therefore, he became the absolute owner and was entitled to alienate the property in favour of defendant Nos. 1 and 2 for production of original sale-deed dated 16. 5. 1966. The applicants have a notice to produce the document to defendant No. 3, who in his reply submitted on oath that the document was not available with him. He could not trace the same and it was not likely to be traced in near future. Finding the difficulty, the present applicants moved an application under Section 65 of the Indian Evidence act requesting the Court that as the original document was not available, they be permitted to produce the certified copy by means of secondary evidence. The said application was contested by the plaintiff. As the said application was rejected by the Court below, applicants have come to this Court. ( 4 ) SHRI Tripathi, learned counsel for the applicants submits that the document dated 16. 5. The said application was contested by the plaintiff. As the said application was rejected by the Court below, applicants have come to this Court. ( 4 ) SHRI Tripathi, learned counsel for the applicants submits that the document dated 16. 5. 1966 which confers title on the applicants predecessor in title is a materials document and as defendant No. 3 has clearly stated that the document is not in his possession and the same is also not traceable, the Court below ought to have granted permission to these applicants to lead secondary evidence. ( 5 ) SHRI Prashant Mishra, learned counsel for the non-applicant No. 1 submits that as the present applicants could not fulfil the preconditions of Section 65 of the Indian Evidence act, the Court below was absolutely justified in rejecting the application. ( 6 ) I have heard the parties at length. In paragraph 3 of the written statement submitted by defendant No. 3 Haldhar, it is clearly mentioned that the property purchased by him under the sale-deed dated 16. 5. 1966 from his own father and since, thereafter, he became the absolute owner of the property. He had also stated in his written statement that the said property was ancestral property which had come to his family branch and as such, the plaintiff's branch did not have any right in the said piece of property. He also stated that the property in dispute was sold by him to the present applicants. It can not be given-up that the document is sought to be produced as a surprise to the plaintiff. It also cannot be disputed that the document is material piece of evidence, so far as the defendant Nos. 1 and 2 are concerned. It can not be disputed that the defendant Nos. 1 and 2 and their vendor defendant No. 3 are required to prove that the defendant No. 3 on 16. 5. 1966 had some title and authority to alienate the property. It cannot also be argued that the applicants are in possession of the said document. Undisputedly, the document ought to have been in the custody of defendant No. 3. The defendant Nos. 5. 1966 had some title and authority to alienate the property. It cannot also be argued that the applicants are in possession of the said document. Undisputedly, the document ought to have been in the custody of defendant No. 3. The defendant Nos. 1 and 2 did issue a notice to defendant No. 3 to produce the document and in response to the said notice, the defendant No. 3 clearly stated on oath that the document was not available with him and there was no likelihood of it is being traced in near future. ( 7 ) FROM these pleadings and the reply of defendant No. 3 it would clearly appear that the applicants are neither in possession of the said document nor being access to it. Section 65 of the Act simply requires that if a party satisfies the judicial conscience of the Court that the document would be material to discharge the issue between the parties, the original of the same is not available, nor can easily be brought or party praying secondary evidence, can not produce the said document in the Court. ( 8 ) IN the present case, present applicants have proved on record that the document is not in their possession. The document is required to decide the issue between the parties. The applicants have no access to the document and there is no likelihood of it is being traced in near future. If the original cannot be produced, then the Court can not say that permission to lead secondary evidence would not be granted. True it is that, it is the discretion of the Court to grant permission to lead secondary evidence, but the discretion has to be exercised in accordance with law looking to the contingencies and exigencies. ( 9 ) IN the opinion of this Court, the Court below fail to exercise the jurisdiction vested in it by law and committed material irregularity in recording findings against the present applicants. The order passed by the Court below deserves to be and is accordingly set aside. Application filed by the present applicants to lead secondary evidence is allowed. No costs. Revision allowed. --- *** --- .