SBCWP No.6867/2007 LRs of Mahaveer Prasad Vs.Pawan Kumar & Ors. 1 S.B. Civil Writ Petition No.6867/2007 LRs of Mahaveer Prasad vs Pawan Kumar & Ors. DATE OF ORDER : - 7.1.2009 HON'BLE MR. PRAKASH TATIA, J. Mr.DR Bhandari, for the petitioner. Mr. Pradeep Shah, for the respondents. <><><> Heard learned counsel for the parties. The petitioner is aggrieved against the order dated 26.8.2006 and the order dated 9.8.2007 and therefore, preferred this writ petition because of the reason that issues involved in two applications, which were decided by the trial court by two separate orders is inter-related. The petitioner's-defendant's application filed under Order 11 Rule 14 CPC was dismissed by the trial court after observing that the defendant in his written statement did not give reference of the rent deed dated 1st June, 1986 and the plaintiff in his reply to the application stated that the rent SBCWP No.6867/2007 LRs of Mahaveer Prasad Vs.Pawan Kumar & Ors. 2 deed in question was never executed. The petitioner's- defendant's application filed under Sections 65 and 66 of the Evidence Act was dismissed by the trial court vide order dated 9.8.2007, which substantially in the light of the decision given dated 26.8.2006. According to learned counsel for the petitioner, the petitioner clearly stated in his written statement that the property in dispute was let out to him on 1st June, 1986 for a consideration of Rs.200/-. He submitted Photostat copy of the rent deed dated 1st June, 1986 in the trial court and its reference is in the order-sheet dated 16.8.1996. The copy of the document was submitted by the defendant before issues were framed by the trial court. The defendant prayed that since the document in original is in existence and is in possession of the plaintiff, therefore, plaintiff be directed to produce the document. The trial court committed serious illegality by observing that since there is no reference of rent deed dated 1st June, 1986 in the written statement, therefore, the document, (which has been relied upon by the defendant by giving reference of the document in the list of document) cannot be SBCWP No.6867/2007 LRs of Mahaveer Prasad Vs.Pawan Kumar & Ors. 3 summoned. The trial court also committed serious error by accepting the statement of plaintiff that document is not in plaintiff's possession. It is submitted that defendant gave notice for production of the document to the plaintiff, which is Ex.10 and this application is supported by affidavit. When the plaintiff did not produce the document in question, then he is entitled to produce the Photostat copy of the document in the evidence as secondary evidence. Learned counsel for the respondent-plaintiff vehemently submitted that there is no illegality in the order passed by the court below and the trial court considered the facts of the case, which cannot be denied nor the defendant can deny the same. It is admitted case that there is no reference of the rent deed in the written statement and the document in question is fabricated and concocted document. The said document – rent deed has not been executed nor it contains the signature of the plaintiff. I have considered the submissions of learned counsel for the parties and perused the record. Any party can seek direction of the court for production of the document to prove his case as well as to SBCWP No.6867/2007 LRs of Mahaveer Prasad Vs.Pawan Kumar & Ors. 4 destroy the other's case. When original document cannot be found or if the condition under Section 65 of the Evidence Act are fulfilled, the party can produce the copy of the document as secondary evidence. The procedure provided in detail in Order 11 for the purpose of seeking permission of the court for production of the document from other party and for taking on record the secondary evidence under Section 65 of the Evidence Act. The principal question involved in these two matters is the existence of the original document. The question whether the document originally existed or is in existence is a question of fact. In this case, defendant pleaded that he is tenant in the suit premises and to evidence the tenancy of the defendant, a document in the form of rent deed was executed on stamp on 1st June, 1986. So far as creation of tenancy, it is a question of fact and the rent deed is evidence in support of tenancy and may be basis and foundation for creation of tenancy, but the document certainly falls in the category of evidence. The defendant before issues were framed by the trial court produced the Photostat copy of the alleged rent deed and in the written statement gave the date of SBCWP No.6867/2007 LRs of Mahaveer Prasad Vs.Pawan Kumar & Ors. 5 tenancy. In that situation, the defendant could have been given opportunity to prove the execution of the document and its existence or could have been given permission to prove that the document in original was in existence and it is in possession of the plaintiff or its original cannot be traced out. The present facts of the case made out a case for holding an inquiry about the document in question and, therefore, without holding an inquiry about the existence and execution of the document, the court should not have rejected the application of the petitioner-defendant. The fact of non-mentioning the execution of the rent deed in the written statement in the facts of this case itself cannot come in way of the petitioner because of the fact that he produced the Photostat copy of the rent deed before issues were framed and he sought production of the said document in original from the plaintiff. Therefore, it is not a case of after thought and if it is a case of after thought and creation of document subsequently, then also looking to the document it need inquiry. Even if the defendant will not be able to get the original document produced from the plaintiff even then he SBCWP No.6867/2007 LRs of Mahaveer Prasad Vs.Pawan Kumar & Ors. 6 can certainly prove the fact that the document produced by the defendant is the true and correct copy of the original and, thereafter, he can prove the execution of the document with the help of the secondary evidence. The trial court's order, therefore, apparently suffers from the error apparent on the face of the record as the trial court has recorded the finding without giving opportunity to the defendant to prove the fact of execution of document and rejected the petitioner's application. It is also worthwhile to mention here that court is not bound to give this opportunity to prove the fact about the document's existence and execution in each and every case and court when finds that the document has been produced in the court after inordinate delay or the document is suspicious or conduct of the party has disentitled the party for the relief then the court can certainly reject the application for summoning of document or for secondary evidence, but in view of the above facts of the case, the said principle cannot be applied and the defendant cannot be denied opportunity to prove the fact of execution of the document and its existence and his inability in getting the SBCWP No.6867/2007 LRs of Mahaveer Prasad Vs.Pawan Kumar & Ors. 7 document in original form. In view of the above reason, the writ petition of the petitioner is allowed. The orders dated 26.8.2006 and 9.8.2007 are set aside. The trial court since his proceeding with the evidence of the parties, therefore, may frame an issue with respect to the execution of the document dated 1st June, 1986 – the rent deed and about the genuineness of the Photostat copy produced by the defendant so that at the timer of decision, the trial court may decide the fact whether in fact, the rent deed dated 1st June, 1986 was executed or not. It is also relevant to mention here that inquiry about the due execution of the document can also be made before the applications are decided, but since there is no reason to allow double trial i.e., trial within trial for this purpose, therefore, it is ordered that the issue be framed with respect to the document with opportunity to both the parties to prove the fact about the execution and its being a fabricated document. Since the record has been called by this Court, therefore, both the parties are directed to appear before the trial court on 10.2.2009. The trial court thereafter, shall proceed to decide the suit SBCWP No.6867/2007 LRs of Mahaveer Prasad Vs.Pawan Kumar & Ors. 8 expeditiously. Record be sent to the trial court alongwith the copy of this order. (PRAKASH TATIA), J. c.p.goyal/-