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2014 DIGILAW 494 (HP)

Sneh Lata v. Om Parkash

2014-04-29

RAJIV SHARMA

body2014
Judgment : Justice Rajiv Sharma, Judge (oral). This petition is instituted against the order dated 27.3.2014 passed by the Civil Judge (Senior Division), Nadaun in CMA No.260/2013 in Civil Suit No. 245/2003. 2. Pertinent facts necessary for the adjudication of this petition are that respondent-plaintiff (hereinafter referred to as the “plaintiff” for convenience sake) has filed Civil Suit No. 245/2003 against the petitioners-defendants (hereinafter referred to as the “defendants” for convenience sake) for permanent prohibitory injunction restraining the defendants from dispossessing or ejecting the plaintiff from the shop shown as ‘A’ ‘B’ ‘C’ and ‘D’ in the site plan over the land comprising Khata No. 257 min, Khatoni No. 270 min, khasra No.422 measuring 6 Kanal 2 marlas situated in Tika Seri Mouza Jalari, Tehsil Nadaun, District Hamirpur. 3. Defendants filed an application under section 65 of the Evidence Act for leading secondary evidence. The application was contested by the plaintiff. Learned Civil Judge (Senior Division) framed the issues on 3.8.2013. The application was dismissed by the Civil Judge (Senior Division) on 27.3.2014. Hence, the present petition. 4. Plaintiff claimed himself to be tenant over the suit property, i.e. shop since 1984 on payment of rent of Rs.300/-. He was running a photo studio in the name and style of ‘Sohan Studio’. According to him, he was forcibly dispossessed from the shop on 21.9.2003 by removing the lock and by taking two video cameras, two still cameras and one photo lab machine. According to the defendants, plaintiff had relinquished his tenancy by executing compromise/agreement on 14.9.2003. 5. According to the averments contained in the application, plaintiff had executed an agreement on 14.9.2003 for vacating the suit property. Original agreement was taken by the police for investigation in Criminal Case F.I.R. No. 190/2003 dated 12.10.2003. According to the plaintiff, no agreement was ever executed on 14.9.2003. 6. AW-1 Ramesh Chand has recorded the statement of ASI Jagdev Kumar on 26.7.2012. 7. Vijay Kumar has led his evidence by way of affidavit Ex.AW-2/A. According to him, compromise Ex. DA was executed by the plaintiff. It was handed over to the police in FIR No. 190/2003. The same was not returned. According to him, document was taken into possession by Sh. Sunder Singh. Sh. Jagdev Singh was present alongwith Sh. Sunder Singh. It was taken into possession 10-15 days prior to recording of F.I.R. No seizure memo was prepared at that time. It was handed over to the police in FIR No. 190/2003. The same was not returned. According to him, document was taken into possession by Sh. Sunder Singh. Sh. Jagdev Singh was present alongwith Sh. Sunder Singh. It was taken into possession 10-15 days prior to recording of F.I.R. No seizure memo was prepared at that time. He has admitted that he was convicted and he has filed an appeal before this Court. He did not know that in that case also only photocopy Ex.DA was produced. He did not know that his handwriting was taken before the Magistrate. According to him, the compromise was prepared by Om Prakash. 8. AW-3 Rakesh Verma has produced the record. Accordingly to him, the original compromise was not in the case file. Rather copy Ex. DX was lying in the case. 9. Sunder Lal has appeared as RW-1. He has investigated FIR No. 190/2003 and presented the challan. F.I.R. was registered on 22.10.2003. According to him, Smt. Sneh Lata and her husband had not produced the original copy of Ex. DA. Efforts were made to trace out the same, however, the same could not be traced. He has filed challan alongwith photocopy of the document. 10. The version of AW-2 Vijay Kumar that the original copy of compromise was handed over to Sunder Lal cannot be believed in view of statement of RW-1 Sunder Lal. According to him, neither Smt. Sneh Lata nor her husband has produced the original document. Rather in his challan he has annexed the photocopy of the document. The F.I.R. was registered against the defendants on 22.10.2003. The copy of the challan is Ex.PW-7/A. During investigation, document dated 14.9.2003 was found to be forged. The accused were convicted vide judgment Ex.PW-7/N dated 29.7.2006. Statement of AW-2 Vijay Kumar that the document was taken into possession 10-15 days before recording the F.I.R. cannot be believed. There was no occasion to the police to take into possession the document, as rightly observed by the trial court, before recording the F.I.R. Document Ex. DA does not bear signatures of defendants. According to AW-2 Vijay Kumar, the compromise was not written in his presence. He did not know who scribed the document. Defendants have failed to make out a case for production of secondary evidence. 11. DA does not bear signatures of defendants. According to AW-2 Vijay Kumar, the compromise was not written in his presence. He did not know who scribed the document. Defendants have failed to make out a case for production of secondary evidence. 11. There is neither any illegality nor any perversity in the order passed by the Civil Judge (Senior Division) and as such there is no need to interfere with the same. 12. Accordingly, there is no merit in the petition and the same is dismissed. Pending application(s), if any, also stands disposed of. No costs.