// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.7316/2008 Shri Baldev Monga S/o Shri Chanan Monga Versus Shri Satyanarain Kanchal S/o Shri Uchab Lal Kanchal and Others Date of Order ::: 05.08.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri M.M. Ranjan and Shri Pancham Surana, Counsel for petitioner Mrs. Sonia Shandilya and Shri Sandeep Pathak, Counsel for respondents No.1 to 8 #### By the Court:- Admit. Mrs. Sonia Shandilya appears for respondents No.1 to 8. The respondent No.9 is only a formal party, therefore, its service is dispensed with. Heard learned counsel for the parties. This writ petition on behalf of the plaintiff, is directed against the impugned order dated 7th July, 2008 passed by the Additional District Judge No.1, Kota, whereby application filed on behalf of the defendant under Order 11 Rules 12 & 14 CPC read with Section 65 of the Evidence Act, has been // 2 // allowed. The plaintiff filed a suit for specific performance of the agreement dated 1st August, 2005, for cancellation of sale- deed dated 10th February, 2006 and for permanent injunction. The defendants contested the suit by filing written- statement. During the pendency of the suit, the defendants moved an application dated 16th February, 2008 under Order 11 Rules 12 & 14 CPC read with Section 65 of the Evidence Act for taking on record two documents i.e. the letters dated 5th and 15th of September, 2005, whereby the defendants are said to have informed the plaintiff about cancellation of the agreement dated 1st August, 2005. The learned trial court, vide its order dated 4th March, 2008, allowed the application and permitted the defendants to produce on the record both the documents. The plaintiff filed a review petition for review of the order dated 4th March, 2008, but the same was dismissed by the trial court on 15th March, 2008. Thereafter the plaintiff-petitioner filed S.B. Civil Writ Petition No.2909/2008 before this Court challenging the aforesaid two orders dated 4th March, 2008 and 15th // 3 // March, 2008. This Court, vide order dated 16th May, 2008, allowed the writ petition and quashed both the orders dated 4th and 15th of March, 2008, and remanded the matter back to the trial court with a direction to consider the issue of existence of documents first and then to pass an order. In pursuance of the remand order dated 16th May, 2008, passed by this Court, the trial court directed both the parties to file their affidavits in respect of existence of documents. Both the parties were allowed to cross-examine on affidavits of other party. The trial court thereafter, vide its order dated 7th July, 2008, recorded a finding about existence of the documents and, consequently, allowed the application filed on behalf of the defendant No.1 in respect of production of secondary evidence about these documents. The said order is under challenge in this writ petition preferred on behalf of the plaintiff. The learned counsel for the petitioner contended that the impugned order passed by the trial court is contrary to the directions of this Court given vide order dated 16th May, 2008 in S.B. Civil Writ Petition // 4 // No.2909/2008; the trial court has not given any specific finding about existence of the said documents; the trial court has only drawn a presumption in respect of these documents, which is contrary to the provisions of the Evidence Act. He, therefore, contended that the impugned order passed by the trial court is liable to be set-aside by this Court. The learned counsel for the respondents contended that the impugned order passed by the trial court is in accordance with the directions of this Court given vide order dated 16th May, 2008; the trial court has recorded a specific finding about existence of both the documents dated 5th and 15th of September, 2005 in the impugned order dated 7th July, 2008; the trial court had directed both the parties to file their respective affidavits in respect of existence of the documents; both the parties were allowed to cross-examine on the affidavits and only thereafter the finding was recorded and thereafter the application filed on behalf of the defendant No.1 to lead secondary evidence in respect of these documents, was allowed. // 5 // The learned counsel for the respondent referred - the letter dated 15th September, 2005, Para 8 of the written-statement wherein there was a specific reference of both the documents dated 5th and 15th of September, 2005, and Para 8 of the rejoinder filed on behalf of the plaintiff wherein there was general denial of Para 8 of the written- statement, but there was no specific denial in respect of these two documents. It was contended that the case of the defendant was set up in the written-statement on the basis of these documents; the original letters were sent to the plaintiff, therefore, the same were in his possession. The name of Courier Company through which the letters were sent, has also been given in the affidavit adduced on behalf of the defendants. It is contended that the plaintiff denied receipt of these two letters by him, therefore, it became necessary to lead secondary evidence in this respect. It is further contended that these documents are very much relevant for proper adjudication of the case. I have considered the submissions of the learned counsel for the parties and examined the impugned order passed by the // 6 // trial court. It appears that the plaintiff filed a suit for specific performance of the agreement dated 1st August, 2005, for cancellation of the sale-deed dated 10th February, 2006 and for permanent injunction. The case of the defendant in the written- statement was that soon after 1st August, 2005, he informed the plaintiff vide letters dated 5th and 15th of September, 2005 that it will not be possible to agree to sell the disputed property and consequently the agreement was cancelled. The defendants filed an application dated 16th February, 2008 contending therein that both the letters, in original, were sent to the plaintiff, therefore, the same is in his possession but the plaintiff has denied having received the same, therefore, it has become necessary to place the same on the record in order to prove the case of the defendants. The trial court allowed the application vide order dated 4th March, 2008. The plaintiff filed a review petition, which was dismissed vide order dated 15th March, 2008. Being aggrieved with the same, the plaintiff preferred S.B. Civil Writ Petition No.2909/2008 and this // 7 // Court vide order dated 16th May, 2008 allowed the writ petition and set-aside both the orders dated 4th and 15th of March, 2008 on the ground that before allowing the application to lead secondary evidence, it was necessary to record a finding about existence of the documents. This Court, therefore, remanded the matter to the trial court to reconsider the matter and to record the finding about existence of the documents before permitting the party to adduce secondary evidence in respect of these documents. Consequent upon the order passed by this Court, the trial court directed both the parties to file their affidavits regarding existence of the documents. Both the parties were allowed to cross-examine on the affidavits. The trial court, after considering the evidence placed on the record by both the parties, recorded a specific finding by drawing a presumption that both the documents are in existence and consequently allowed the application filed on behalf of the defendant under Order 11 Rules 12 & 14 CPC read with Section 65 of the Evidence Act. I have considered the reasons assigned // 8 // by the trial court in the impugned order dated 7th July, 2008 for allowing the application filed on behalf of the defendants. The reasons assigned by the trial court appears to be perfectly justified. I do not find any illegality, perversity or jurisdictional error in the said order so as to interfere with the same. This Court, while exercising its powers under Article 227 of the Constitution, is not expected to act as an appellate court but its jurisdiction under Article 227 of the Constitution is very limited. I do not find any merit in the contention of the learned counsel for the petitioner so as to interfere with the impugned order dated 7th July, 2008. In view of above, I do not find any merit in this writ petition and the same is accordingly dismissed with no order as to costs. (Narendra Kumar Jain) J. //Jaiman//