Civil Revision No.6885 of 2009 (O& M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 6885 of 2009(O&M) Date of Decision: November 25 , 2009 PBIL Apex Consortium Limited and another ..........Petitioners Versus Punjab State Electricity Board, Patiala ...... Respondent Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr.Maninder Arora, Advocate for Mr.N.S.Janjua, Advocate for the petitioner. **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Ajay Tewari, J. This petition has been filed against an order allowing production of secondary evidence. The respondent had filed a suit for recovery on the ground that during checking excess load was found in the premises of the petitioners and on that account the respondent was entitled to recover certain amounts. During proceedings an application was made stating that the original record relating to the petitioners was in the custody of Gurmohan Singh Walia, SDC (Legal) who had died on 13.11.2007 and that after his death the original record was not traceable. It was further pleaded that a screening committee of the respondent-board had gone into the matter and had also given a report that the original record was not traceable. A photocopy of the Civil Revision No.6885 of 2009 (O& M) 2 said report was annexed with the application. It was further mentioned that at the time of filing the case Photostat copies of the original record had been got prepared and since, the original record was not available, the said photocopies be permitted to be led in secondary evidence. In reply to the application the petitioners took the stand that the application was not maintainable; that it was incumbent upon the respondent to produce the original record; that the allegation that the record was with Gurmohan Singh Walia was wrong and that the report of the screening committee was fabricated. The learned trial Court has allowed the application holding that he is only receiving the documents in evidence and the same would be read only if the respondent is able to prove the question regarding their loss. Learned counsel has further argued that the application for secondary evidence was not supported by an affidavit. He has relied upon State of Rajasthan and others v. Khemraj and others reported as AIR 2000 SC 1759 wherein the Hon'ble Supreme Court held as under:- “Leave granted. 2. Though this case has a chequered history, but at this stage we are only concerned with an order made by the trial Court on 21st January, 1997 on an application filed by the appellants under Section 75 of the Evidence Act to produce secondary evidence in respect of a map, the attested copy of which had been filed with that application. The learned trial Court recorded that the application seeking permission to lead secondary evidence under Section 65 of the Evidence Act was not supported by any affidavit and also that the averments contained in the application were vague. It was on account of these deficiencies that the learned trial Court rejected the application filed under Section 65 of the Evidence Act. The High Court in revision, did not interfere with the order of the Civil Revision No.6885 of 2009 (O& M) 3 trial court on 1-2-1999. Hence, the appeal by special leave. 3. In the face of the pleadings of the appellants and the defects noticed by the trial court no fault can be found with the orders of the trial court or of the High Court. However, it appears appropriate to us, in the interest of justice, to permit the appellant to file a fresh application in the trial court for seeking permission under Section 65 of the Evidence Act to lead secondary evidence supported by a proper affidavit and giving full details necessary to attract the provisions of Section 65 of the Evidence Act. 4. In the event such an application is filed within four weeks, the same shall be disposed of afresh on its own merits, by the learned trial court uninfluenced by its earlier order dated 21.1.1997 or the order of the High Court dated 1.2.1999. The appeal is disposed of in the above terms. No costs. Order accordingly.” I pointed out to learned counsel that even if technically his argument is correct then even as per this judgment and particularly para 3 thereof it would be seen that a case has been made out for allowing the respondents to file a fresh application along with an affidavit. In these circumstances leaned counsel has not been able to persuade me that the impugned order suffers from such material irregularity so as to be liable for interference in the extra ordinary jurisdiction of this Court under Article 227 of the Constitution of India. Consequently this revision is dismissed. Since the main case has been decided, the pending Civil Misc. Applications, if any, stand disposed of. (AJAY TEWARI) JUDGE November 25, 2009 Civil Revision No.6885 of 2009 (O& M) 4 sunita