CR No.5143 of 2009(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.5143 of 2009(O&M) Date of decision: 23.8.2010 Bhinder Singh ......Petitioner(s) Versus Shingara Singh and another ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Padamkant Dwivedi, Advocate for the petitioner. Mr. Gurcharan Dass, Advocate for respondent No.1. Rakesh Kumar Garg, J. CM No.21408-CII of 2009 Application is allowed subject to all just exceptions. CR No.5143 of 2009(O&M) This is plaintiff's revision petition challenging the impugned order dated 10.8.2009 whereby his application under Section 65(a) of the Indian Evidence Act for directing respondent No.1 to produce the documents and in the alternative to allow him to prove the documents as mentioned in the application, by way of secondary evidence, has been dismissed. In his application, the petitioner stated that defendant- respondent No.1-Shingara Singh be directed to produce the original Panchayatnama dated 8.6.1999 and Will dated 30.4.1993 executed by Smt. Hartej Kaur @ Tej Kaur and sale deed dated 22.6.1999 executed by Smt. Tej Kaur wife of Gurdev Singh and the sale deeds of Karamjit Kaur,Charanjit Kaur and Paramjit Kaur and Amarjit Kaur, which were in his CR No.5143 of 2009(O&M) 2 possession and in the alternative, the petitioner be allowed to prove the aforesaid documents by way of secondary evidence. The aforesaid application was contested by the defendant-respondent. In reply to the aforesaid application, it was specifically submitted by defendant No.1 that he was not in possession of the Panchayatnama dated 8.6.1999 and he can obtain the certified copies of the alleged Will dated 30.4.1993 and sale deed dated 22.6.1999 and prove the same in accordance with law. Vide impugned order, while dismissing the application, the trial Court held that there is no material on record to indicate that the original documents are in possession of the defendant-respondents and therefore, the requirement of Section 65(a) of the Indian Evidence Act is not fulfilled and even no notice under Section 66 of the Evidence Act is shown to have been given to the respondents to produce the aforesaid documents. It was also noticed by the trial Court that the issues in this case were framed on 10.8.2005 and the case was lingering on for petitioner's evidence since long and thus, he was not entitled to the relief claimed. Challenging the aforesaid order, learned counsel for the petitioner has vehemently argued that in his reply, the respondent has not denied the possession of the documents sought to be produced by the petitioner except Panchayatnama dated 8.6.1999 and therefore, it is impliedly admitted by the respondent that the documents sought to be produced were in his possession and since the respondent has failed to produce the same, the petitioner should have been allowed to prove the aforesaid documents by way of additional evidence as per provisions of Section 65 of the Evidence Act. I have heard learned counsel for the petitioner and perused the impugned order. Section 65(a) of the Evidence Act reads as follows: CR No.5143 of 2009(O&M) 3 “65. Case 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;” A bare reading of the aforesaid provision shows that secondary evidence may be given under the said provision, of the contents of a document when the original is shown or appears to be in possession or power of the person against whom the document is sought to be produced. However, in the present case, the petitioner has not shown that the alleged Wills and the sale deed executed by Smt. Hartej Kaur are in possession of defendant-respondent No.1. Furthermore, there is nothing on record on the basis of which it can be inferred that the aforesaid documents are in possession of the defendant-respondent. In para 2 of the reply, on merits, defendant-respondent No.1 has specifically denied having possession of documents sought to be produced. In this view of the matter, the petitioner has failed to satisfy the conditions of Section 65(a) of the Evidence Act and he cannot be permitted to prove the aforesaid documents under the aforesaid provisions of Section 65(a) of the Evidence Act. CR No.5143 of 2009(O&M) 4 It may be noticed that the petitioner has not sought permission of leading secondary evidence on any other ground available to him independent of provisions of Section 65(a)of the Evidence Act, 1872. No merits. Dismissed. August 23, 2010 (RAKESH KUMAR GARG) ps JUDGE