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2015 DIGILAW 1048 (RAJ)

Pooran Singh v. Hetram

2015-05-12

ARUN BHANSALI

body2015
JUDGMENT 1. - This writ petition has been filed by the petitioner aggrieved against order dated 11.03.2015 passed by the trial court, whereby, the application filed by the petitioner under Section 65 of the Evidence Act, 1882 ('the Act') has been rejected. 2. A suit for specific performance was filed by respondent No. 1 - Hetram on 30.06.2009 seeking specific performance of agreement to sale dated 30.10.1991. 3. The suit was resisted by the petitioner. 4. During the pendency of the suit, the petitioner filed an application under Section 65 of the Act with the averments that the applicants had sought production of the affidavit executed by plaintiff for Theka dated 27.01.2000, which has not been produced, however, its photo copy was available on the record; the photo copy has been prepared from the original, which is not fraudulent or concocted and, therefore, the petitioner may be permitted to produce secondary evidence qua the affidavit dated 27.01.2000. 5. The application was resisted by the plaintiff; it was indicated that the plaintiff in an application filed by the petitioner under Order 11, Rule 14 CPC has denied execution of the said document and the document was fraudulent and concocted, the document was claimed to be executed in favour of the defendants and, therefore, it ought to be in their possession; the document does not bear plaintiff's signature nor the stamp has been purchased by the plaintiff and after preparing a fraudulent document, the photo copy has been produced, which cannot be permitted by way of secondary evidence; it was prayed that the application be dismissed. 6. After hearing the parties, the trial court by the impugned order came to the conclusion that the defendants have not proved the existence of the document as the affidavit of neither the witness nor the scribe have been produced; it is not apparent that the document has been compared with the original and was only a photo copy. No notice as envisaged by Section 66 of the Act has been issued and, therefore, it was not justified to permit secondary evidence of such a document and, consequently, dismissed the application. 7. No notice as envisaged by Section 66 of the Act has been issued and, therefore, it was not justified to permit secondary evidence of such a document and, consequently, dismissed the application. 7. Learned counsel for the petitioner submitted that the trial court was not justified in dismissing the application; it was submitted that the plaintiff has deliberately withheld the original from the Court and there was no reason for the petitioner not to produce the document if the same was in his possession and, therefore, the trial court was not justified in dismissing the application. 8. I have considered the submissions made by learned counsel for the petitioner and have perused the material placed on record. 9. A bare perual of the document Annexure-7 reveals that terms of the document indicates execution of the document in favour of the defendants and the plaintiff was justified in contending that from the tenor of the document, if such a document existed, the original would be with the defendants only; without accounting for the said document, the defendants first sought production of the said document from the plaintiff, existence of which document was denied by the plaintiff; where-after, the application under Section 65 of the Act was filed. 10. For permitting production of secondary evidence qua the document Annexure-7, the petitioner was required to establish the existence of the document, the document does not indicate as to for what purpose and before which authority the said document was produced/was to be produced and, therefore, the trial court was justified in observing that the petitioner has failed to even produce affidavits of the scribe and the witness to the said document for establishing the existence of the document, in absence whereof, the trial court was justified in dismissing the application filed by the petitioner. 11. Consequently, there is no substance in the writ petition and the same is, therefore, dismissed. The stay petition is also dismissed.Petition dismissed. *******