C.R. No. 5931 of 2010 -1- ***** IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH C.R. No. 5931 of 2010 (O&M) Date of Decision : 15.09.2010 Mahender Singh & another .......... Petitioners Versus Rajesh Kumar ...... Respondent CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. S.S. Godara, Advocate for the petitioners. **** VINOD K. SHARMA, J. (ORAL) The petitioners have invoked the revisional jurisdiction of this Court to challenge the order dated 24.8.2010, passed by the learned Addl. Civil Judge (Sr.Div.), Fatehabad, allowing an application moved by the defendant / respondent for leading additional evidence to prove the sale deed No. 2123 dated 9.10.2007. The application was filed on 7.1.2010, the learned trial Court held, that the main dispute in the case was with regard to the execution of the sale deed No. 2123, which was said to have been lost by the applicant / defendant. The learned trial Court held, that in order to succeed in the application for secondary evidence two conditions were to be satisfied, i.e. the existence of the document, which is sought to be C.R. No. 5931 of 2010 -2- ***** proved by way of secondary evidence, and loss thereof. The learned trial Court held, that the sale deed is a registered document, its existence is, therefore, prima facie proved, and that the defendant / applicant made an assertion that original was lost, therefore, the condition stipulated for grant of relief stood satisfied. The learned trial Court also held, that the existence of the document was also proved by examining DW-1 to DW-5, and the loss is not required to be proved in absolute terms. The application for leading secondary evidence was, thus, allowed, and the objections filed by the petitioner to oppose the application were rejected. The learned counsel for the petitioner challenged the impugned order, on the ground, that the respondent / defendant could not have been allowed to lead secondary evidence at belated stage, as the application was moved after nine months and after availing number of opportunities to lead the evidence. In support of the contention the learned counsel for the petitioner placed reliance on the judgment of this Court in the case of Surinder Kumar Vs. Murari Lal 1993(2) Recent Revenue Reports 535, wherein this Court was pleased to lay down as under :- “10. The present suit was filed on 30th August, 1988. In the plant, it was never alleged that the original sale deed and the mortgage deed were lost or destroyed. In the written statement filed by the petitioner, a C.R. No. 5931 of 2010 -3- ***** specific objection was taken that the sale deed was a forged document and, therefore, did not pass any title to respondent No.1 but in spite of this, the sale deed did not see the light of the day. The case was adjourned from time to time and even three official witnesses who were present on 25th July, 1989 were given up. Respondent No.1 was allowed five opportunities to produce his evidence and at no stage, a mention was made that the original sale deed and the mortgage deed had been lost. On 21st February, 1990, for the first time; a request was made by respondent No.1 seeking time to file application for secondary evidence. In the application for seeking leave to lead secondary evidence, the only allegation made is that the sale deed and the mortgage deed had been lost a few years back. Application for secondary evidence was filed on 28th February, 1990, that is after 1 ½ years of the filing of the suit. While filing the suit, in the plaint, no mention was made that the original documents had been lost. In the application for permission to lead secondary evidence, the allegation made was that the original documents had been lost a few years back without mentioning the date, time and the place of loss. The application was totally vague and lacking in particulars. It was not even supported by an affidavit. No case ha d been made out for permission to lead secondary evidence as the application for permission to lead secondary evidence lacked in particulars. Had the documents C.R. No. 5931 of 2010 -4- ***** been lost for the last several years then the respondent No.1 would have mentioned in the plaint regarding the loss of these two documents on any dates of adjournment which were given to him for leading his evidence in affirmative. The petitioner right from beginning was contesting the execution of these two documents and was insisting upon the production of the original documents. All these circumstances clearly go to show that respondent No.1 did not come with clean hands to the Court and, therefore, the trial Court erred materially in the exercise of the present case. When the plea was vague, lacking in particulars and not supported by any affidavit, the trial Court could not grant respondent No.1 an opportunity to lead secondary evidence under somewhat similar circumstances, A.L. Bahri J. in Hira and another v. Smt. Gurbhachan Kaur, 1988(2) Rev.L.R. 69 held as under :- “Held, that when the present suit was filed by the plaintiffs, no averment was made, that the original agreement to sell had been lost or destroyed or was not otherwise available. Only photocopy of the agreement to sell was filed with the plaint. The defendant had alleged that the document was false and fabricated. Even when issues were framed, the original agreement to sell was not produced on behalf of the plaintiffs. It was sonly after allowing 2/3 opportunities to produce evidence that the last opportunity was allowed to the plaintiffs to produce the C.R. No. 5931 of 2010 -5- ***** evidence, that the plaintiff came forward with such an application without mentioning therein as to when and under what circumstances the original agreement to sell was lost. When the plea was vague, as stated above, which was not supported by any affidavit, it was not required of the trial Court to afford any opportunity of leading evidence on this point.” On consideration, this Court finds no force in the contentions raised by the learned counsel for the petitioners. This Court in the case of Surinder Kumar Vs. Murari Lal (supra) dismissed the application for leading secondary evidence for the following reasons :- (i) The suit was filed on 30.8.1988, without mentioning that the sale deed and mortgage deed were lost or destroyed. (ii) In the written statement specific objection was taken that sale deed was forged document. (iii) The case was adjourned from time to time and official witnesses who were present for evidence were given up. (iv) The stand taken was that sale deed was lost few years back. (v) Application was moved after 1 ½ years of filing of suit. (vi) In spite of the fact, that documents were lost as C.R. No. 5931 of 2010 -6- ***** alleged even before filing of suit, no mention was made regarding this fact in the plaint. (vii) No date, time and place of loss was mentioned, totally vague allegations lacking material particulars were pleaded, which were not supported by affidavit. Similarly in the case titled as Bhagwan Sarup Vs. Jagdish Kumar Jain 2000(2) RCR(Civil) 246, on which reliance was placed this Court held, that secondary evidence can be allowed on proof of loss or destruction, when conditions stipulated under Section 65 of the Evidence Act are complied with. The reading of impugned order shows, that the authorities relied on by the petitioners can have no application to case in hand. The learned trial Court recorded a positive finding, that the conditions stipulated under Section 65 of the Evidence Act, stood stipulated as the existence and loss of sale deed was proved. The application was moved immediately on coming to know about loss. The respondent also led evidence in support of case by examining the witness and did not give up official witnesses. There was no occasion to plead loss, as respondent was defendant in the suit and had placed copy of sale deed along with the written statement filed. In view of findings referred to above, it can safely be said, that the exercise of jurisdiction by the learned trial Court in allowing the application for secondary evidence is not perverse, or that the learned Court lacked jurisdiction. C.R. No. 5931 of 2010 -7- ***** No ground is, therefore, made out to interfere with the order in exercise of revisional jurisdiction. No merit. Dismissed. 15.09.2010 (VINOD K. SHARMA) 'sp' JUDGE