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2012 DIGILAW 1012 (HP)

Bikram Singh v. Subhash Chand

2012-12-19

KULDIP SINGH

body2012
JUDGMENT Kuldip Singh , Judge ( Oral ) This petition is directed against the order dated 19.12.2011 passed by learned Civil Judge (Senior Division), Una, District Una, H.P. in Civil Miscellaneous Application No. 206-VI-201 1 in Civil Suit No. 138/2005 declining to permit secondary evidence for proving registered lease deed dated 12.12.1953. 2. It has been submitted by the learned counsel for the petitioners that in the plaint itself, the petitioners have pleaded that Nagina had executed a lease deed (patta) in favour of Waryam Singh which was registered before Sub Registrar, Una on 12.12.1953.The original was not traceable and the certified copy obtained from the Sub Registrar office with Hindi translation was placed on record alongwith the plaint. It has been submitted that in the written statement the factum of registered lease deed dated 12.12.1953 has not been specifically denied. The petitioners led evidence and lease deed Ex.PW-1/A was taken on record without objection from the other side. However, in order to avoid technical objection lateron, an application under Section 65 of the Indian Evidence Act was moved for leading secondary evidence to prove lease deed dted 12.12.1953. 3.The respondents have been served but none has put in appearance on their behalf. The Civil Judge (Senior Division) has dismissed the application primarily on the ground that the application has been moved at a belated stage. It is the stand of the petitioners right from the very beginning that the original lease deed dated 12.12.1953 has been lost and, therefore, they moved an application for proving lease deed dated 12.12.1953 by secondary evidence in order to avoid technical objection. The lease deed Ex.PW-1/A is already on record. The foundation of the suit is based upon lease deed dated 12.12.1953. In the facts and circumstances of the case, the Civil Judge (Senior Division), has erred in declining the secondary evidence to prove lease deed dated 12.12.1953 merely on the ground of delay. 4.In these circumstances, the petition is allowed, order dated 19.12.2011 passed by Civil Judge (Senior Division), Una, District Una, H.P. in Civil Miscellaneous Application No. 206-VI-201 1 in Civil Suit No. 138/2005 is set-aside. 4.In these circumstances, the petition is allowed, order dated 19.12.2011 passed by Civil Judge (Senior Division), Una, District Una, H.P. in Civil Miscellaneous Application No. 206-VI-201 1 in Civil Suit No. 138/2005 is set-aside. The application moved by the petitioners under Section 65 of the Indian Evidence Act for leading secondary evidence to prove the lease deed dated 12.12.1953 is allowed subject to costs of !1 ,000/- to be paid by the petitioners in the Court below to the respondents. The petition is disposed of on above terms. CMP No. 200 of 2012 has become infructuous in view of disposal of the main petition.