Civil Revision No.4574 of 2011 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.4574 of 2011 Date of decision: July 29, 2011. Shri Surajbal Singh ... Petitioner v. M/s JRS Projects Pvt. Ltd. & Anr. ... Respondent(s) CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Shri Jitender Nara, Advocate, for the petitioner. Kanwaljit Singh Ahluwalia , J. Present revision petition has been filed against the impugned order dated 23.3.2011 (Annexure P-3) whereby Additional Civil Judge (Senior Division), Bahadurgarh had accepted the application filed by the plaintiff to the suit to lead secondary evidence. In the application Annexure P-1, plaintiff pleaded that the present petitioner, being defendant No.1, had entered into an agreement to sell with defendant-respondent No.2, for sale of the suit land. In the application, it was stated that the petitioner-defendant No.1 was the owner of the suit land. In the agreement dated 29.3.2005, the rate at which the land was to be sold, was determined as Rs.40.00 lacs per acre and the defendant No.1 had received an earnest money of Rs.18.50 lacs and had further agreed to execute the sale deed on or before 28.6.2005 in favour of defendant No.2 or his nominee. On 31.3.2005, defendant No.2 nominated Civil Revision No.4574 of 2011 -: 2 :- plaintiff as his nominee for purchase of the suit land and had assigned all his rights and interests in the said agreement to sell in favour of the plaintiff- respondent vide written nomination agreement dated 31.3.2005. The respondent-plaintiff company had paid Rs.18.50 lacs to defendant No.2 in lieu of advance money paid by him to defendant No.1. An information to this effect was also sent to defendant No.1. It was pleaded that the plaintiff- company being nominee of defendant No.2 was entitled to enforce the agreement to sell dated 29.3.2005 against defendant No.1. Since defendant No.1 avoided execution of the sale deed, the suit was filed. In the application Annexure P-1, it was stated that photo copy of the nomination/agreement dated 31.3.2005 was placed on the judicial file, however, the original nomination/agreement dated 31.3.2005 has been lost. The loss of the document and the document which was lost, was sought to be proved by way of secondary evidence. Defendant No.1 filed reply to the application Annexure P-1 raising various objections and further stated that the story of loss of document is a made-up affair. Case was fixed on 18.7.2009 for last opportunity and thereafter another last opportunity was granted for 26.9.2009. No FIR has been lodged regarding loss of the nomination agreement. The learned trial court relied upon Ashok Kumar Sachdeva v. Harish Malik 2007(4) RCR (Civil) 311 and held that the applicant-plaintiffs have to seek leave of the court to lead secondary evidence and will succeed only if they are able to prove loss or destruction of the document by producing cogent evidence. The court held that whether the document has been lost or destroyed and whether there was negligence or default on the Civil Revision No.4574 of 2011 -: 3 :- part of the plaintiff, can only be decided after opportunity is given to them to lead evidence. The court only intended to hold an enquiry regarding existence of document which is lost and under what circumstances it was lost. This enquiry is restricted only to determine this question of fact. Hence, there is no controversy as regards the ratio of law laid down in Ashok Kumar Sachdeva's case (supra). Thus, in the present case, plaintiffs are supposed to prove at first the loss of the document and the circumstances in which it was lost and thereafter, the court, after holding this enquiry, will decide the question of admissibility of the document which is sought to be proved by way of secondary evidence. Hence, no interference is warranted in the present revision petition and the same is dismissed in limine. [Kanwaljit Singh Ahluwalia] July 29, 2011. Judge kadyan