CR No.5629 of 2009 (O&M) 1 In the High Court for the States of Punjab and Haryana at Chandigarh. Decided on July 21,2010. Mohinder Giri and ohers --Petitioners vs. Sita Ram -- Respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.Sanjiv Gupta,Advocate,for the petitioners Mrs.Sharmila Sharma,Advocate,for the respondent. Rakesh Kumar Jain, J, Petitioners have challenged the order dated 28.8.2009, passed by Civil Judge (Junior Division), Karnal, by which an application to prove the agreement dated 05.3.1990, by way of secondary evidence, has been dismissed. In brief, facts of the case are that one Mansa Gir had two sons, namely, Sita Ram and Rati Ram. Sita Ram filed a suit against his brother Rati Ram, for declaration to the effect that he is owner in possession of the suit property. His claim was denied by Rati Ram on the ground that after partition on 5.3.1990, the suit property has come to his share to which the plaintiff has no concern. While leading his evidence, Rati Ram examined DW-1-Ram Lubhaya Dhammi, Deed Writer, District Courts, Karnal, who CR No.5629 of 2009 (O&M) 2 had stated that he is the scribe of the agreement dated 5.3.1990 which is entered at serial No.175 in his register. The agreement was written by him as per instructions of both the parties, who had put their signatures after the agreement was read over to them. The agreement was also signed by the witnesses, namely Sat Narain, Ashwani Kumar Sharma, Rakesh son of Murari Lal and Ram Nath son of Brij Lal. On 14.5.2009, the defendant had filed an application with a request to allow him to prove the agreement dated 5.3.1990 by way of secondary evidence or to direct the plaintiff to produce the original agreement before the Court. It was alleged that after the death of Rati Ram, elder brother Sita Ram has become dishonest, who does not want to honour the agreement between the brothers and is having the original agreement with him which he is not producing before the Court as he had flatly denied the possession of the said document. The learned Court below, vide its impugned order dated 28.8.2009, dismissed the application on the ground that the petitioner is the beneficiary of the agreement as he had admitted in the written statement that partition had taken place between the brothers on 5.3.1990 and the suit property came to his ownership, therefore, the original document must be in his possession and as such, he is not entitled to lead secondary evidence in terms of Section 65 (a) of the Indian Evidence Act, 1872 (for short,the Act). Learned counsel for the petitioners has vehemently argued that the impugned order suffers from patent irregularity and illegality because the learned Court below has dismissed the application on the ground that since the petitioners are the only beneficiary of the agreement CR No.5629 of 2009 (O&M) 3 dated 5.3.1990, therefore, the original document must be in his possession. Learned counsel for the petitioners has placed on record true translated copy of the agreement Annexure P-5 according to which both the brothers were owners of property No.836-VII in which there were two rooms, kitchen, balcony, six shops, shed, two big halls, out of which four shops, kitchen, one room and two big halls were taken by Sita Ram and only two shops and one room was given to Rati Ram. Dehlij and sehan were kept common between the parties, whereas the balcony was given to Sita Ram/respondent. It is submitted that as per this arrangement, out of six shops, only two shops were given to the petitioners, therefore, at least, 2/3rd of the property in dispute was taken by the elder brother Sita Ram. Thus, it has been wrongly presumed by the Court below that the petitioners were the beneficiary, therefore, they must be in possession of the original document. It is submitted that as per Section 65 (a) of the Act, the petitioners have proved the existence of the document by leading evidence of Deed Writer and the application filed for production of the original document by itself is a notice to the respondent as per Section 66 of the Act to produce the same. In these circumstances, it is submitted that the petitioners may be allowed to lead secondary evidence of the document. On the contrary, learned counsel for the respondent has argued that the defendant/petitioner had not taken the plea in the written statement that the original copy of the agreement dated 5.3.1990 is in possession of the plaintiff, therefore, the application is not maintainable. I have heard both the learned counsel for the parties and gone through the record with their assistance. Before referring to the submissions of learned counsel for the CR No.5629 of 2009 (O&M) 4 parties, it would be relevant to refer to the provisions of Sections 65 and 66 of the Act, which reads as under:- 65.Cases in which secondary evidence relating to documents may be given. Secondary evidence may be given of the existence, condition or contents of a document in the following cases:-- “(a) when the original is shown or appears to be in the possession or power-- of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it; (b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest; (c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time; (d) when the original is of such a nature as not to be easily movable; (e) when the original is a public document within the meaning of section 74; (f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in [India] to be given in evidence, (g) when the originals consists of numerous accounts or other documents which cannot conveniently be examined in Court CR No.5629 of 2009 (O&M) 5 and the fact to be proved is the general result of the whole collection. In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents”. 66. Rules as to notice to produce. Secondary evidence of the contents of the documents referred to in section 65, clause (a), shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, [or to his attorney or pleader,] such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case: Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it:-- “(1) when the document to be proved is itself a notice; (2) when, from the nature of the case, the adverse party must know that he will be required to produce it; (3) when it appears or is proved that the adverse party has obtained possession of the original by fraud or force; (4) when the adverse party or his agent has the original in Court; CR No.5629 of 2009 (O&M) 6 (5) when the adverse party or his agent has admitted the loss of the document; (6) when the person in possession of the document is out of reach of, or not subject to, the process of the Court”. The only reason on the basis of which the application of the petitioners has been rejected by the Court below is that the petitioners have been presumed to be the beneficiary of agreement dated 5.3.1990,whereas according to the agreement itself, which is on record as Annexure P-5, the plaintiff himself is the beneficiary of at least 2/3 rd of the entire property, therefore, it could be easily presumed that the original document must be in possession of the plaintiff instead of defendant. Moreover, the petitioners have prima facie, proved on record the existence of document by examining Deed Writer who has categorically stated about the execution of document by him and as the plaintiff has denied the execution of document, in my view, the petitioners/defendants are entitled to lead secondary evidence of the said document in terms of Section 65 (a) of the Act. In view of the above discussion, the present revision petition is allowed and the impugned order is hereby set aside with costs. July 21,2010 (Rakesh Kumar Jain) RR Judge