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Rajasthan High Court · body

2015 DIGILAW 1085 (RAJ)

Bhagwati Devi v. Fair Deal Complex Pvt. Ltd.

2015-05-18

ARUN BHANSALI

body2015
JUDGMENT 1. - These writ petitions have been filed by the petitioners plaintiffs aggrieved against orders dated 03.05.2014 passed by the trial court, whereby, applications filed by the petitioners under Section 65 of the Evidence Act, 1872 ('the Act') and Section 39 of the Stamp Act, 1998 ('Stamp Act') have been rejected. 2. The petitioners filed suits for specific performance of oral agreement and agreement dated 18.07.2003 and mandatory & permanent injunction against the defendants; it was, inter alia, claimed that the respondents proposed to sale shops to the petitioners and, in this regard, an oral agreement was entered into between the parties and, in pursuance thereof, a sum of Rs. 1,35,000/- was paid through cheques and receipts in the form of agreements were given by the respondents along with layout plan of the proposed complex; it is claimed that on account of inaction on the part of the defendants, the petitioners filed a suit for specific performance of the contract. 3. The respondents filed written statements admitting entering into agreement and receiving the sum, but it was alleged that the agreement entered into between the parties cannot be said to be an agreement as per the provisions of law. 4. During the pendency of the suits, the petitioners filed applications under Order 11, Rule 14 CPC for summoning documents from the respondents, which was allowed and the respondents were directed either to submit the documents or submit their affidavits with regard to documents in question and the applications were disposed of on 23.05.2013 on the ground that the respondents have denied the possession of the documents and defendant - Mulakhraj was directed to file an affidavit in this regard. 5. As the possession of the documents was denied by the defendants, the petitioners filed an application under Section 65 of the Act seeking permission to lead secondary evidence with regard to map prepared by the Architect and original agreement. 6. Applications under Section 39 of the Stamp Act for permission to pay requisite stamp duty by claiming the documents dated 18.07.2003 as agreements were also filed. 7. 6. Applications under Section 39 of the Stamp Act for permission to pay requisite stamp duty by claiming the documents dated 18.07.2003 as agreements were also filed. 7. Though no reply to the applications were filed, the same were resisted by the defendants and the trial court after hearing the parties came to the conclusion by the impugned order that as the photo copied documents produced by the plaintiffs could not be compared with the original documents and the defendants have denied the existence of the documents, the application under Section 65 of the Act was liable to be dismissed; the trial court further came to the conclusion that as the document dated 18.07.2003 was a receipt, the application under Section 39 of the Stamp Act was also liable to be dismissed. 8. It is submitted by learned counsel for the petitioners that though the orders pertaining to applications under Section 39 of the Stamp Act have been challenged in the present writ petitions, the petitioners do not want to pres the same; regarding the rejection of application under Section 65 of the Act, it is submitted that the trial court has committed serious error in rejecting the same; the application has been rejected on the ground that existence of the documents has been denied by the defendants, which is factually incorrect, it was further submitted that another ground given by the trial court regarding non-comparison of the documents with the original is also without any foundation and, therefore, the order impugned deserves to be quashed and set aside. 9. Learned counsel for the respondents duly supported the order passed by the trial court; it was submitted that the documents are not genuine and are fraudulent and the petitioners are, therefore, not entitled to lead secondary evidence qua the said documents. 10. I have considered the rival submissions made by learned counsel for the parties and have perused the material placed on record. 11. When the petitioners filed application under Order 11, Rule 12 and 14 CPC, the trial court allowed the same and a reply was filed by defendant - Satish Kumar that the defendant had resigned from the Company as Director and the documents were in possession of defendant Nos. 1 and 3 and none of the documents were in his possession; on behalf of defendant Nos. 1 and 3 and none of the documents were in his possession; on behalf of defendant Nos. 1 and 3 it was submitted that defendant No. 2 - Mulakhraj was not the Director and has left the Company and, therefore, his affidavit could not be filed; whereafter, by order dated 23.05.2013 on account of the fact that in the affidavits filed by defendant Nos. 1, 3 and 4, the possession of the documents was denied, the trial court disposed of the application in this regard and directed defendant - Mulakhraj to file affidavit, which it appears was never filed; whereafter, the present application under Section 65 of the Act was filed by the petitioners, inter alia, indicating that as the original documents have not been produced, the petitioners be granted permission to lead secondary evidence regarding the said documents, photo copies of which, were already there on record. 12. Though no reply to the application was filed, however, the trial court on assumption that existence of documents was denied by the defendants has rejected the application, the said assumption of the trial court is wholly contrary to the material available on record, inasmuch as, at no stage the existence of the documents was denied; in the affidavits filed in reply to the application under Order 11, Rule 12 and 14 CPC, the 'possession of documents' were denied and not the 'existence of the documents', where-after the trial court directed filing of affidavit by Mulakhraj, which it appears was never filed and, therefore, the foundational aspect on which application has been rejected by the trial court is non-existent; further, the trial court on account of the fact that the photo copies were allegedly not compared with the original has rejected the application; the trial court while dealing with the application has ignored the provisions of Section 63(3) of the Act, which provides that secondary evidence includes copies made from or compared with the original and once the plea has been raised, which has not been denied by the defendants regarding the documents being photo copies of the originals, there was no occasion for the trial court to reject the application. 13. So far as objection of the respondents about the authority for execution of the documents etc. 13. So far as objection of the respondents about the authority for execution of the documents etc. is concerned, merely permitting leading of the secondary evidence is not sufficient to prove the documents; it would be required of the petitioners to prove the documents and the contents thereof like any other document and, therefore, the objection raised by the respondents regarding the nature of documents cannot be examined at this stage. 14. Consequently, the writ petitions filed by the petitioners are partly allowed. The order dated 03.05.2014 to the extent application filed by the petitioners under Section 65 of the Act has been rejected by the trial court is set aside. The petitioners are permitted to lead secondary evidence qua the documents as indicated in their applications. The order passed by the trial court on application under Section 39 of the Stamp Act does not require any interference as the challenge has not been pressed by learned counsel for the petitioners.Petition allowed. *******