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2008 DIGILAW 592 (UTT)

GOPAL MEHROTRA v. LAKSHMAN SINGH

2008-12-26

PRAFULLA C.PANT

body2008
JUDGMENT Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 100 of Code of Civil Procedure, 1908, is directed against the judgment and decree dated 09.05.2003, passed by learned District Judge, Almora, in Civil Appeal No. 04 of 2003, whereby the said appeal was dismissed affirming the judgment and decree dated 01.06.2001, passed by the trial court (Civil Judge (Junior Division), Ranikhet), in suit No. 06 of 1998. The trial court had dismissed the suit of the plaintiff for specific performance of contract. 2. Heard learned counsel for the parties and perused the record. 3. Brief facts of the case are that the plaintiff/appellant instituted suit No. 06 of 1998, against the defendant/respondent-Laxman Singh, pleading that the defendant had a land situated in Village Kidai, Patti Nakuri, Tehsil and District Bageshwar, in respect of which he (defendant) had applied for mining lease/prospecting licence. But the defendant was financially weak and had no experience of mining work. Therefore, on 09.07.1993, he entered into a contract with plaintiff Gopal Mehrotra, at Ranikhet whereby the plaintiff agreed to bear all the financial expenses on the condition that the prospecting licence/mining lease, on being granted to the defendant, would be transferred to the plaintiff. It is further pleaded by the plaintiff in the plaint that out of total amount of consideration of Rs. 25,000/-, an amount of Rs. 5,000/- was paid in advance to the defendant and later in two instalments of Rs. 15,000/- further payment was made. The plaintiff has further pleaded that in obtaining the prospecting licence in favour of the defendant, plaintiff had to spend Rs. 72,500/-. But when the prospecting licence was granted to the defendant on 14.09.1994, which was registered on 02.06.1995, with Sub-Registrar, Bageshwar, the defendant refused to transfer the licence to the plaintiff. Hence the suit for specific performance of contract was filed by the plaintiff against the defendant. 4. The defendant did not contest the suit before the trial court and suit proceeded ex-parte. The trial court after hearing the plaintiff and going through the evidence, adduced by him found that the suit cannot be decreed, as prayed by the plaintiff for the reason that the original agreement entered between parties was not produced in the court, and secondary evidence was not admissible in view of the provision contained in Section 64 read with Section 65 of Indian Evidence Act, 1872. 5. 5. Aggrieved by said judgment and decree dated 01.06.2001, passed by the trial court, the plaintiff filed civil appeal (No. 04 of 2003) before the District Judge, Almora. However, said court after hearing the parties, dismissed the appeal not only on the ground that the secondary evidence was inadmissible but also on the ground that prospecting licence/mining lease, granted by the Government to the defendant was non transferable licence and an agreement against the law cannot be enforced. 6. This Second Appeal was admitted on 01.06.2007, on following question of law, suggested in the memorandum of appeal:- Whether decree of specific performance of the agreement can be passed in favour of the plaintiff, against the defendant, to get the prospecting licence/mining lease, transfer to the plaintiff within such time, as the court may grant? Earlier vide order dated 23.06.2008, this second appeal was allowed, but on application, moved under Order 41 Rule 21 of Code of Civil Procedure, 1908, the said order was recalled. And matter heard afresh. 7. Having heard learned counsel for the appellant and learned counsel for the respondent, this Court finds that the suit is not only liable to be dismissed on the ground that original documentary evidence was not produced, and further on the ground that the prospecting mining licence was non transferable but also on the ground that the trial court at Ranikhet, had no territorial jurisdiction to decree the suit in respect of the property situated in district Bageshwar. 8. I do not find any error of law, committed by the trial court in dismissing the suit on the ground that the plaintiff has failed to produce the documentary evidence. Section 64 of Indian Evidence Act, reads as under:- “Documents must be proved by primary evidence except in the cases hereinafter mentioned.” Section 65 enumerates the conditions when the secondary evidence may be adduced by a party, which reads as under:- “65. Cases in which secondary evidence relating to documents may be given. Section 64 of Indian Evidence Act, reads as under:- “Documents must be proved by primary evidence except in the cases hereinafter mentioned.” Section 65 enumerates the conditions when the secondary evidence may be adduced by a party, which reads as under:- “65. Cases in which secondary evidence relating to documents may be given. – Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:- (a) When the original is shown or appears to be in the possession or power- of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it; (b) when the existence, condition, or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest; (c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time; (d) when the original is of such a nature as not to be easily movable; (e) when the original is a public document within the meaning of section 74; (f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India, to be given in evidence; (g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection. In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled i.e. the examination of such documents.” The plaintiff/appellant had neither pleaded nor shown by any evidence that which of the categories mentioned above in Section 65, are applicable to him. As such, keeping in view the provision contained in Section 64 of Indian Evidence Act, 1872, the trial court has rightly dismissed the suit on the ground that the plaintiff has not proved his case, as required under the law. 9. Apart form this, from the mining licence granted in favour of the defendant, to which he agreed to transfer the licence to the plaintiff, it appears that the same was not transferable to any person. The first appellate court has rightly observed that since the licence granted to the defendant by the Government was non transferable, as such, if the defendant has committed breach of agreement, at the most, he could have sought decree for damages, not for the specific performance of contract. 10. This Court while hearing this appeal, further found yet another ground on which the relief sought in suit filed by the plaintiff/appellant could not have been granted, is that Section 16 of Code of Civil Procedure, 1908, in clear words provides that suits are to be instituted where subject matter situate. Clause (d) of Section 16 of the Code, provides that for the determination of any right or interest in immovable property, suit shall be instituted in the Court within the local limits of whose jurisdiction, the property is situate. The only exception is where the relief can be obtained entirely through personal obedience, and in that situation suit can be instituted in the court having jurisdiction where the defendant actually and voluntarily resides. Perusal of the plaint shows that defendant is residing in District Bageshwar, as such, Court of Civil Judge, Junior Division, at Ranikhet in District Almora, had no jurisdiction to entertain the suit. That being so, the suit was otherwise also liable to be dismissed. Perusal of the plaint shows that defendant is residing in District Bageshwar, as such, Court of Civil Judge, Junior Division, at Ranikhet in District Almora, had no jurisdiction to entertain the suit. That being so, the suit was otherwise also liable to be dismissed. However, this appeal is not being dismissed on that ground, as the defendant had not raised objection on the point of jurisdiction. In view of provision contained in Section 21 of Code of Civil Procedure, 1908, now that objection cannot be raised but on other points mentioned above, the appeal is liable to be dismissed. Question of law stands answered accordingly. 11. For the reasons, as discussed above, this Court finds no force in this second appeal, which is liable to be dismissed, as neither the trial court nor the first appellate court has committed any error of law in dismissing the suit or the first appeal. Therefore, the second appeal is dismissed. No order as to costs.