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2021 DIGILAW 1757 (RAJ)

Sukhdev Singh v. Lrs of Lekhraj

2021-09-18

INDERJEET SINGH

body2021
ORDER : Inderjeet Singh, J. 1. This writ petition has been filed by the petitioner challenging order dated 10.09.2018, whereby the application submitted by petitioners-plaintiffs for calling the original documents from the defendants as well as for submitting photocopy of the agreement dated 17.10.1988 on record as secondary evidence has been dismissed by the learned trial Court. 2. Brief facts of the case are that petitioners-plaintiffs filed a suit for specific performance against respondents-defendants before the learned trial Court. During pendency of the suit before the learned trial Court, the petitioners-plaintiffs filed an application under Order 11 Rule 14 read with Section 151 CPC and read with Section 67 of the Indian Evidence Act, 1872. The prayer made by the petitioners in the said application reads as under: ^^vr% izkFkZuk i= is'k dj fuosnu gS fd oknhx.k dk ;g izkFkZuk i= Lohdkj fd;k tkdj izfroknhx.k la&12 o 13 dks uksfVl nsdj ewy ¼vuqca/k½ bZdjkjukek tks eqy vkoaVh Jhrqylh iq= Jh mTtoy czkge.k fnukad 17&10&1988 dks izfroknhx.k la&12 ds i{k esa fd;k gS] dks U;k;ky; esa is'k djus ds fy, vknsf'kr fd;k tkos rFkk mlds i'pkr Hkh izfroknhx.k la-12 o 13 bl ewy ¼vuqca/k½ bZdjkjukek dks U;k;ky; ds le{k is'k djus esa vleFkZ jgrs gS rks oknhx.k dks bl ewy bZdjkjukek ¼vuqca/k½ dh fp= izfr tks bl izkFkZuk i= ds lkFk is'k dh tk jgh gS] dks f}rh;d lk{; ds :i esa iznf'kZr djus dh vuqefr nh tkosA fnukad 21&7&15^^ 3. The said application was dismissed by the learned trial Court vide order dated 07.07.2017 and the learned trial Court refused to take photocopy of agreement dated 17.10.1988 on record as secondary evidence. 4. Being aggrieved by the order dated 07.07.2017, the petitioners-plaintiffs filed S.B. Civil Writ Petition No. 10611/2017 before this Court wherein on 01.09.2017, the Coordinate Bench of this Court passed the following order: "Mr. Abhinav Jain, learned counsel appearing for the petitioner, after arguing the matter for some time, seeks permission to withdraw the present writ petition, with a liberty to move appropriate application for leading secondary evidence in relation to the document dated 17.10.1998, after compliance of the provisions of Section 66 of the Evidence Act. Permission granted. Accordingly, the present writ petition is dismissed as withdrawn, with the liberty aforesaid. Needless to observe that as and when, the petitioners move appropriate application, the same shall be decided, in accordance with law." 5. Permission granted. Accordingly, the present writ petition is dismissed as withdrawn, with the liberty aforesaid. Needless to observe that as and when, the petitioners move appropriate application, the same shall be decided, in accordance with law." 5. The petitioners-plaintiffs again filed an application before learned trial Court for taking on record the photocopy of agreement dated 17.10.1988 as secondary evidence. The prayer in the application is as under: ^^vr% izkFkZuk i= is'k dj fuosnu gS fd ewy vuqcU/k i= fnukad 17-10-1988 dks U;k;ky; esa is'k djus ds fy, izfroknh la- 12 o 13 vFkok muds vfHkHkk"kd dks izLrqr djus ds fy, ikcUn fd;k tkos ;fn fdlh dkj.ko'k og vuqcU/k i= fnukad 17-10-1988 dks U;k;ky; ds le{k izLrqr djus esa vleFkZ jgrs gS rks oknhx.k }kjk izLrqr blh vuqcU/k i= dh fp=izfr dks f}rh;d lk{; ds :i esa xzg.k dj iznf'kZr djus dh vuqefr iznku dh tkosA^^ 6. The second application for taking on record the agreement dated 17.10.1988 by way of secondary evidence was also dismissed by the learned trial Court vide order dated 10.09.2018. Hence this writ petition has been filed by the petitioners-plaintiffs. 7. Learned counsel for the petitioners submitted that learned trial Court has committed serious illegality in dismissing the application submitted by petitioners-plaintiffs as the same was necessary to be taken on record for deciding the controversy involved in the matter. Counsel further submits that this Court granted liberty to the petitioners to file a fresh application before the learned trial Court for taking the secondary evidence on record. 8. Learned counsel, appearing on behalf of respondents, submitted that a bare perusal of the application submitted by petitioner in the year 2015 as well as the application submitted in the year 2017, indicates that the petitioners have prayed for taking on record the agreement dated 17.10.1988 by way of secondary evidence. Therefore, the petitioners cannot be allowed to file second application as the first had already been dismissed by the learned trial Court against which no relief has been granted by this Court in favor of the petitioners. Learned counsel further submitted that the petitioners-plaintiffs have not mentioned anything about the agreement dated 17.10.1988 in their suit. Lastly, learned counsel for the respondents prayed for dismissal of the writ petition. 9. Heard learned counsel for the parties. 10. Learned counsel further submitted that the petitioners-plaintiffs have not mentioned anything about the agreement dated 17.10.1988 in their suit. Lastly, learned counsel for the respondents prayed for dismissal of the writ petition. 9. Heard learned counsel for the parties. 10. This writ petition, filed by the petitioners-plaintiffs deserves to be dismissed for the reasons, firstly, the application filed by the petitioners-plaintiffs for taking on record agreement dated 17.10.1988 as secondary evidence was dismissed by learned trial Court vide order dated 07.07.2017, therefore, the second application is not maintainable on the same grounds before the learned trial Court. Secondly, a bare perusal of the prayer made by the petitioners-plaintiffs in both the applications for taking on record agreement dated 17.10.1988 as secondary evidence, clearly shows that the prayers are identical in nature, therefore, after dismissal of the first application by learned trial Court, the second application is not maintainable on the same grounds. Lastly, the petitioners-plaintiffs have not mentioned the fact regarding existence of agreement dated 17.10.1988 in his suit pleadings. 11. Therefore, in the facts and circumstances of the present case, I am not inclined to exercise jurisdiction of this Court under Article 226 & 227 of the Constitution of India. 12. Hence, the writ petition is dismissed. 13. Interim order is also vacated.