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2006 DIGILAW 199 (PNJ)

Pooja Sharma @ Bhawana Sharma v. Satish Kumar

2006-01-24

HEMANT GUPTA

body2006
JUDGMENT HEMANT GUPTA, J. 1. The petitioner has sought transfer of petition filed by the respondent under Section 7 read with Section 10 of the Guardian and Ward Act, 1890 (hereinafter to be referred as ‘the Act’), for appointment of Guardian with respect to the person of minor. The said petition has been filed at Jagadhri. In the petition, it has been pleaded that the minor is residing with his mother in her paternal house, which falls within the jurisdiction Tehsil Dera Bassi, District Rajpura. 2. The petitioner has sought transfer of the said petition to Rajpura on the ground that the petitioner’s life is under threat as the respondent is a man of criminal nature and the respondent may exercise his influence against her. 3. Once it is the admitted stand of the respondent that the minor is staying with his mother at Dera Bassi falling within the jurisdiction of Tehsil Dera Bassi, District Rajpura, the petition for appointment of a Guardian is maintainable, only before the Courts at Rajpura. 4. Consequently, the present petition is allowed. The case No. 75-G of 24.11.2003 Satish Kumar V. Pooja Sharma, pending in the Court of Civil Judge, Jagadhri, exercising the powers under the Guardian & Ward Act, shall stand transferred to the competent Court at Rajpura. 5. Parties through their counsel are directed appear before the learned District Patiala on 7.3.2006 on which date the learned District Judge shall entrust the case to the competent Court at Rajpura. - 2006 (1) LAW HERALD 0578 (P&H) PUNJAB AND HARYANA HIGH COURT CORAM HEMANT GUPTA, J. C.R. NO. 1885 OF 2004 18.01.2006 Gopal Singh Petitioner Vs. Shish Pal and others Respondents For the Petitioner : Mr. B.L. Gulati, Advocate For the Respondent nos. 1 to 3 : Mr. Adish Gupta, Advocate For the Proforma Respondents : Mr. Ajit Singh, Advocate IMPORTANT POINT Evidence - Once the existence, execution and loss of a document is proved, only then the plaintiff would be able to make out a case for admission of a document sought to be produced by way of secondary evidence. Evidence Act, 1872 - Secondary Evidence - Scope of - Held, Once the existence, execution and loss of a document is proved, only then the plaintiff would be able to make out a case for admission of a document sought to be produced by way of secondary evidence. Evidence Act, 1872 - Secondary Evidence - Scope of - Held, Once the existence, execution and loss of a document is proved, only then the plaintiff would be able to make out a case for admission of a document sought to be produced by way of secondary evidence. Evidence Act, 1872 - Secondary Evidence - Permission of - Scope of - Held, i) it would not be fair and reasonable to conclude that no such documents was ever executed, without having been led any evidence on the question of existence, execution and loss of the document. (Para 5) ii) Plaintiff should permitted to prove the existence, execution and loss of document in respect of suit property. (Para 6) JUDGMENT HEMANT GUPTA, J. 1. The plaintiff is in revision aggrieved against the order passed by the learned trial Court on 9.3.2004, whereby the application filed by the petitioner for permission to lead secondary evidence to prove agreement dated 11.9.1992 in respect of the property in dispute, was declined. 2. The plaintiff-petitioner has filed a suit for declaration with consequential relief of permanent injunction in respect of residential plot measuring 220 square yards. It was alleged that though the sale deed in respect of the said plot was prepared in the name of defendant no.1 and proforma defendant nos. 2, 3 and 4 out of love and affection, whereas the property actually belonged to the Joint Hindu Family. The petitioner has relied upon a family arrangement dated 11.9.1992, whereby the property was allegedly partitioned. It has been further pleaded that since the date of partition, the Cotton Spinning Machine has been installed and the plaintiff is in peaceful possession of the suit property as owner. 3. In the written statement, the defendants have denied that the property is a Joint Hindu Family property. It was submitted that earlier agricultural land was partitioned through oral partition for cultivation purposes. However, a private partition was reduced in writing on 11.9.1992. Except the partition of the agricultural land, it was pleaded that no other family arrangement was ever made and it has been further pointed out that the alleged family arrangement dated 11.9.1992 has been fabricated on the pattern of private partition of agricultural land. However, a private partition was reduced in writing on 11.9.1992. Except the partition of the agricultural land, it was pleaded that no other family arrangement was ever made and it has been further pointed out that the alleged family arrangement dated 11.9.1992 has been fabricated on the pattern of private partition of agricultural land. The aforesaid document was fabricated and prepared by purchasing the stamp paper from the same stamp vendor on the same day when the aforesaid partition of the agricultural land was arrived at between plaintiff and defendant no. 1 and the proforma defendants no. 2 to 4. 4. During the course of trial, the plaintiff moved an application for permission to lead secondary evidence to prove the agreement dated 11.9.1992 by placing photocopy of such compromise. The defendant was called upon to produce the original but the defendant denied that no such original document is in his possession. After considering the respective stands of the parties, the learned trial Court declined the application on the ground that the petitioner has not mentioned that photocopy is the copy of original or is duly compared with the original. It has been further found that secondary evidence of a certified copy of document is not permissible and in case of loss of documents, it has to be established that the document was executed or that subsequently the document was lost without which photocopy of the document can never be allowed to be placed on record. The Consequently, the application for secondary evidence was dismissed. 5. The question whether agreement dated 11.9.1992 was executed in respect of a residential plot is a question of fact which can be determined only if opportunity is given to the parties to prove the execution of such document. Once, the existence, execution and loss of a document is proved, only then the plaintiff would be able to make out a case for admission of a document sought to be produced by way of secondary evidence. However, without any evidence having been led on the question of existence, execution and loss of the document, it would not be fair and reasonable to conclude that no such document was ever executed. Therefore, I am of the opinion that the order passed by the learned trial Court suffers from patent illegality and irregularity. 6. In view of the above, the present revision petition is allowed. Therefore, I am of the opinion that the order passed by the learned trial Court suffers from patent illegality and irregularity. 6. In view of the above, the present revision petition is allowed. The plaintiff is permitted to prove the existence, execution and loss of the agreement dated 11.9.1992 in respect of the suit property. If the plaintiff is able to prove the existence, execution and loss of the agreement dated 11.9.1992, only then it can be considered in evidence. 7. Parties through their counsel are directed to appear before the learned trial Court on 6.3.2006 for further proceedings in accordance with law.