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2014 DIGILAW 1802 (RAJ)

Surendra Bahadur Singh v. Kapil Soni

2014-11-12

ARUN BHANSALI

body2014
JUDGMENT : 1. This writ petition under Article 227 of the Constitution of India is directed against order dated 12.04.2014 passed by the trial court, whereby, the application filed by the respondent plaintiff under Section 65 of the Indian Evidence Act, 1872 ('the Act') has been allowed. 2. During pendency of the suit, the plaintiff filed an application under Section 65 of the Act, inter alia, with the averments that a copy of the rent note, which had been filed with the plaint, its original was not available; a copy whereof was filed by his father in the suit filed by him before the Court of Additional Munsif No.2, Jodhpur and the defendant - Trilok Chand Golecha in his written statement had admitted his signatures on the said rent note; the rent note was not disputed and was a admitted document and, therefore, permission for secondary evidence may be granted. 3. The application filed by the plaintiff was opposed by the petitioner-defendant on the ground that the same was not supported by affidavit and it has not been proved that the original has been lost and, therefore, the application was liable to be rejected. 4. The trial court by the impugned judgment came to the conclusion that plea regarding non-availability of the original rent note has been taken in the suit itself and it is not the case of the defendant that the document does not bear signatures of Trilok Chand and, consequently, allowed the application as noticed hereinbefore. 5. It is submitted by learned counsel for the petitioner that the trial court fell in error in allowing the application filed under Section 65 of the Act as the requirements as envisaged by Section 65 of the Act were not fulfilled, inasmuch as, the plaintiff has even failed to assert that the original of the document in question has been lost and, therefore, the order impugned deserves to be quashed and set aside. 6. Reliance was placed on K. Ashraff v. S. Gangaraman. 7. Learned counsel for the respondent - plaintiff supported the order impugned. 6. Reliance was placed on K. Ashraff v. S. Gangaraman. 7. Learned counsel for the respondent - plaintiff supported the order impugned. It was submitted that from the beginning the case of the plaintiff has been that the rent note was not available, the existence of the rent note has not been denied by the defendant and, therefore, there is apparently no substance in the objections raised by the petitioner and the writ petition deserves to be dismissed. 8. I have considered the rival submissions made by learned counsel for the parties. 9. A bare look at the plaint (Annexure-1) reveals that in para 1 of the plaint itself, the plaintiff had indicated that the original rent note was not available and copy whereof was filed by his father in the previous suit filed against Trilok Chand. In his written statement (Annexure-2), the petitioner herein contended that the suit premises were taken on rent for the business of Marudhar Vikas Mandal and the rent note was brought by Mool Chand, on which, though Trilok Chand had put his signatures, however, as to the contents of the said documents, the defendant was not aware. 10. From the above assertions made in the plaint and the written statement, it is apparent that while the plaintiff from the initiation of the proceedings has categorically indicated non-availability of the rent note, the defendant though has pleaded ignorance regarding contents of the document has however admitted the signatures of Trilok Chand. 11. In view of the consistent stand of the plaintiff regarding non-availability of the original rent note, the application under Section 65 of the Act came to be filed for permission to lead secondary evidence. The argument raised by learned counsel for the petitioner that as there is no averment made in the application regarding the original having been destroyed or lost, the application itself was not maintainable has no substance as the assertion consistently made regarding 'non-availability' is sufficient to bring the case within requirement of provisions of Section 65 of the Act and it is not necessary that the specific words as indicated in the Section are only to be averred in the application. 12. 12. The judgment of Madras High Court in the case of K. Ashraff (supra) has apparently no application as in the said case the case of the applicant was that the document was mixed up with other documents, which is not the situation in the present case. 13. In view of the above discussion, there is no substance in the writ petition and the same is, therefore, dismissed. The stay application is also dismissed.Petition Dismissed.