C.R. No.7136 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No.7136 of 2009 Date of decision:10.12.2009 Om Parkash …Petitioner Versus Harbhajan Lal …Respondent Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Anupam Bhardwaj, Advocate for the petitioner. L. N. MITTAL, J (ORAL) Defendant-Om Parkash has filed this revision petition under Article 227 of the Constitution of India assailing order dated 20.10.2009 (Annexure P-4) passed by learned Civil Judge (Junior Division), Ludhiana thereby allowing application of plaintiff- respondent for leading secondary evidence of agreement to sell dated 19.06.2002 allegedly executed by the defendant-petitioner in favour of plaintiff-respondent. I have heard learned counsel for the petitioner and perused the case file. At the outset, learned counsel for the petitioner states that photostat copy of the agreement which is sought to be led as secondary evidence thereof does not bear original signatures of the parties, but the same is only photostat copy of the alleged agreement and the signatures are also in Photostat condition and not original. The plaintiff's case is that the original agreement is in possession of the defendant. Plaintiff moved application under Order C.R. No.7136 of 2009 -2- 11 Rule 12 read with Section 151 of the Code of Civil Procedure (in short, C.P.C) for directing the defendant to produce the original agreement. However, the defendant denied being in possession of the alleged original agreement. Even execution of the agreement was denied. Consequently, no direction could be given to the defendant under Order 11 Rule 12 C.P.C to produce the original agreement because the defendant denied the possession thereof. In view thereof, plaintiff moved application for secondary evidence which has been allowed by the trial Court by its impugned order. Learned counsel for the petitioner vehemently contended that on 19.06.2002 itself, the defendant petitioner had purchased the suit property from the plaintiff-respondent and, therefore, on the same day, the defendant would not have entered into agreement to sell the same property to the plaintiff. However, this contention relates to merits of the suit and not to the provision of secondary evidence. Learned counsel for the petitioner also contended that if any such agreement to sell had been executed, the same would have been in possession of the plaintiff-respondent being prospective vendee and not in the possession of the defendant-petitioner as vendor. However, this contention has also to be examined by the trial Court while finally adjudicating the suit. For the purpose of secondary evidence, the plaintiff- respondent made out a case inasmuch as he alleged that the original agreement was in possession of the defendant-petitioner, but the defendant-petitioner has denied the possession thereof. Consequently, the plaintiff -respondent has a right to produce C.R. No.7136 of 2009 -3- secondary evidence of the agreement by way of Photostat copy thereof which has been prepared by mechanical process of Photostat which is covered by Section 63(2) of the Evidence Act within the meaning of secondary evidence. In view of the aforesaid, I find no illegality in the impugned order of the trial Court so as to warrant interference at the hands of this Court in exercise of power of superintendence under Article 227 of the Constitution of India. The instant revision petition being devoid of merit is accordingly dismissed in limine. However, it is expressly made clear that I have not expressed any opinion on the contentions raised on behalf of defendant-petitioner regarding merits of the suit including the contention that the alleged original agreement should have been in the possession of plaintiff-respondent. It would be for the trial Court to adjudicate upon the said contentions. Nothing observed hereinabove shall have any bearing on the merits of the suit. ( L. N. MITTAL ) JUDGE 10.12.2009 A.Kaundal