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2006 DIGILAW 197 (PNJ)

Gulshan Kumari v. Krishan Gopal

2006-01-24

HEMANT GUPTA

body2006
JUDGMENT HEMANT GUPTA, J. 1. The plaintiff is in revision petition aggrieved against the order passed by the learned trial Court on 15.11.2003, whereby application filed by the petitioner for permission to lead secondary evidence to prove copy of the plaint and the written statement of the previous proceedings, was declined. 2. The plaintiff has sought a decree for partition and rendition of accounts. During the course of trial, the plaintiff summoned two witnesses. The statement of one witness could not be recorded as the record was not produced by the record keeper. Subsequently, the petitioner filed an application for examining Shri Som Dev Sharma, Advocate and Shri J.R. Gupta, Advocate, to prove the plaint and the written statement in Civil Suit No. 1 of 1988. The summoned witness has given a statement that the record is not traceable. The learned trial Court declined permission to lead secondary evidence on the ground that it was the duty of the plaintiff to produce the certified copy of the judgment and other relevant evidence, which is deemed necessary. Since neither the certified copy nor photostat copies of the plaint, written statement and the decree were produced, therefore, the plaintiff is not entitled to lead secondary evidence. 3. As per the statement of summoned witness, the record is not available. Since, the record is not available, the plaintiff was justified in summoning Shri Som Dev Sharma, and Shri J.R. Gupta, Advocate, to prove the copy of the plaint and the written statement filed through the said Advocates, from the typed copies, which have been produced by the plaintiff before this Court. 4. Keeping in view the fact that the record is not available, the consequences of the same cannot be passed on to the plaintiff. In my opinion, the order passed by the learned trial Court suffers from patent illegality and irregularity causing injustice to the petitioner. 5. Consequently, the present revision petition is allowed. The impugned order is set aside and the plaintiff is allowed to produce the secondary evidence of the documents, which are stated to be part of Court record. 6. Parties through their counsel are directed to appear before the learned trial Court on 7.3.2006, for further proceedings in accordance with law.