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2011 DIGILAW 1670 (PNJ)

Joginder Singh v. Adesh Aggarwal

2011-09-01

RAM CHAND GUPTA

body2011
JUDGMENT RAM CHAND GUPTA, J. - Petitioner-defendant has invoked supervisory jurisdiction of this Court under Article 227 of the Constitution of India for setting aside order dated 11.5.2009, Annexure P1, passed by learned Additional Civil Judge (Senior Division) Karnal, vide which application filed by respondent-plaintiff for permission to lead secondary evidence was allowed. 2. I have heard learned counsel for the parties and have gone through the whole record carefully including the impugned order passed by learned trial Court. 3. Briefly stated, respondent-plaintiff filed a suit for specific performance of agreement to sell dated 16.1.2006 as well as for recovery of unliquidated damages/compensation with consequential relief of permanent injunction restraining present petitioner-defendant from alienating the property in dispute. 4. Suit was contested by present petitioner-defendant denying the execution of the agreement to sell dated 16.2.2006 as well as the receipt of earnest money for sale of land in dispute. Plea has been taken that the alleged agreement to sell is a result of fraud. 5. Original agreement to sell was not attached with the plaint. However an application was filed by petitioner-defendant for direction to respondent-plaintiff to produce the original agreement to sell dated 16.1.2006. As per the directions of the Court, the agreement to sell was produced and the same was sealed by the Court on the request of respondent-plaintiff. 6. After framing of issues, case was fixed for evidence of the plaintiff. Part evidence of the plaintiff was already recorded. Counsel for the respondent-plaintiff filed an application for inspecting the original agreement to sell, which was lying sealed. As per order of the Court the seal was opened and the document was seen by counsel for the respondent-plaintiff. After perusing the same he observed that last page of agreement, i.e., page No.4 was not original one and rather the same was a coloured photostat of the page of original agreement to sell. Plea has been taken that at the time of producing original agreement, respondent-plaintiff got coloured photostat copy of the same prepared from a shop situated in the Mini Secretariat, Sector 12, Urban Estate, Karnal and that inadvertently the original page No.4 was left at the shop and the coloured photostate page was attached with the original. It is also stated that as the copy was a coloured one, original as well as coloured copy seemed to be the same with naked eye. It is also stated that as the copy was a coloured one, original as well as coloured copy seemed to be the same with naked eye. The original page no.4 of the agreement could not be traced by the respondent-plaintiff even by making strenuous efforts. He also lodged DDR No.10 dated 26.5.2008 with the police regarding loss of page no.4 of the agreement. Hence, application has been filed for leading secondary evidence of the same, which was opposed by present petitioner-defendant on the plea that the agreement is a forged one and, however, the same was allowed by learned trial Court vide impugned order. 7. In this case existence of the original agreement containing original page No.4 is not disputed as the same was produced in the Court, as per the order of the Court and the same was also sealed. Specific plea has been taken by respondent-plaintiff that original page of the agreement, i.e., page no.4 was lost as the same was inadvertently left by him at the shop from where he got prepared photostat copy of the same and that inadvertently photostat copy was attached with the other pages of original agreement while filing in the Court. He also lodged DDR with the police in this regard. The agreement is stated to have been attested by Notary Public, Karnal. He intends to prove execution of the same by secondary evidence by examining the Notary Public as well as attesting witnesses. 8. This Court in Ved Parkash v. Rattan Lal Aggarwal, 2005(1) Civil Court Cases 103 has observed that secondary evidence can be allowed if there is loss or destruction of the original document and that such permission to lead secondary evidence is summary in nature and the party propounding the document has to prove the factum of execution of the document during the course of the trial. Relevant paragraph of the judgment reads as under: “21. In view of the judgments cited above, the party seeking to produce the secondary evidence can be permitted to prove the execution of the document if the loss or destruction of the document is proved. If the Court on the basis of averments made in the application for secondary evidence and the reply, if any, is satisfied about the loss or destruction of the document, the Court shall permit leading of secondary evidence. If the Court on the basis of averments made in the application for secondary evidence and the reply, if any, is satisfied about the loss or destruction of the document, the Court shall permit leading of secondary evidence. Such permission of the Court to lead secondary evidence is summary in nature and the party propounding the document has to prove the factum of execution of the document during the course of trial.” 9. In Meena Sharma v. Rama Sharma, 2008(2) 150 PLR 149 it was observed by this Court that for the purpose of leading secondary evidence, the Court was only to form opinion of the lost of the document and not with regard to the existence as the same is required to be proved by leading secondary evidence to prove the document. Relevant paragraph of the judgment reads as under:- “18. In Phipson on Evidence, 9th Edition at page 544 occurs the following passage: “The rule requiring-production of the attesting witnesses provided their names are known holds, although the document is lost or destroyed where both the documents is lost and the attesting witness is dead, proof of handwriting by someone who remembers having seen the document, although admissible is not indispensable.” Again at page 570 it is pointed out: “The party tendering secondary evidence must prove the existence and execution of the document directly if possible, or presumptively where not.” Again in Taylor on Evidence 11th Edition. Vol. 1 at page 326 it is pointed out: “In all cases before such evidence (meaning secondary evidence) will be admissible, it must be shown that the original instrument was duly executed and was otherwise genuine. Vol. 1 at page 326 it is pointed out: “In all cases before such evidence (meaning secondary evidence) will be admissible, it must be shown that the original instrument was duly executed and was otherwise genuine. If the instrument were of such a nature as to require attestation the attesting witness must, if known, be called, or in the event of his death his handwriting must be proved precisely in the same manner as if the deed itself has been produced, though, if it cannot be discovered who the attesting witness was this strictness of proof will, from necessity, be waived.” Thus, it has to be held that the existence of the document is required to be proved after the, parties lead evidence and for purpose of allowing secondary evidence the court has to only form opinion about the loss of the document and not with regard to its existence as the same is required to be proved by leading secondary evidence to prove the document. This view of mine also finds support from the judgment of this Court in the case of Amar Chand v. Smt. Kaushalya 1985(2) All India Land Laws Reporter 46 wherein it has been held as under: “2. Section 65 of the Indian Evidence Act deals with the case in which secondary evidence relating to documents can be given. The relevant part of this section reads: “Secondary evidence may be given (as to) the existence, condition or contents of document in the following cases: (a)- (b)- (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:” 3. According to the petitioner, Gokal was his maternal uncle. He claims the property of Gokal on the basis of the Will allegedly executed by the latter in his favour and registered on November 25, 1938. It is understood that such original Will, if any, ought to have been in possession of the petitioner. The plea of the petitioner is that the same has been lost. The petitioner thus, made out a case for leading secondary evidence about the Will under Section 65(c) of the Indian Evidence Act. It is understood that such original Will, if any, ought to have been in possession of the petitioner. The plea of the petitioner is that the same has been lost. The petitioner thus, made out a case for leading secondary evidence about the Will under Section 65(c) of the Indian Evidence Act. The learned trial Judge misdirected himself by recording a finding that the original Will had not been executed and that it had not been lost, the stage when the petitioner sought permission to lead secondary evidence. The occasion for recording a finding on this point for or against the petitioner would arise after the parties have concluded evidence. The impugned order of the trial Court, therefore, cannot be sustained.” 10. In Tilak Raj v. Janak Raj and others 1998 (2) Civil Court Cases 115 it was observed that for relying secondary evidence applicant must state existence of document and its loss subsequent thereto and that the party has to give a fair chance to prove its case in accordance with law. Relevant paragraph of the judgment reads as under:- “7. It is a settled principle of law that application to lead secondary evidence must state the existence of the document and its loss subsequent thereto. Once these two ingredients are stated and the Court is prima facie satisfied that such a document had existed and it appears to have been lost subsequently, permission to lead secondary evidence to the applicant would be granted. The reliance by the learned trial Court on the judgment of this Court is well founded. In the present case the plaintiff is not taking the defendants by surprise and had produced the evidence in his power and possession right at the first instance before the Court. The ends of justice would deemed that a party who has approached the Court must be given a fair chance to prove its case in accordance with law.” 11. Hence, in view of this legal proposition, when respondent-plaintiff has been able to show the existence of the document, able to show loss of the same, it cannot be said that any illegality or material irregularity has been committed by learned trial Court in passing the impugned order or that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. Moreover, law has been well settled by Hon'ble Apex Court in Surya Dev Rai v. Ram Chander Rai and others, 2003(6) SCC 675: AIR 2003 SC 3044: 2004(1) RCR (Civil) 147, that supervisory jurisdiction is not available to be exercised for indulging in re-appreciation or evaluation of evidence or correcting the errors for drawing inference like a Court of appeal. It has been observed as under:- “Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.” Hence, the present revision petition is, hereby, dismissed being devoid of any merit. Petition Dismissed.