C.R.No.1940 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R.No.1940 of 2010 Date of decision:05.04.2011 Surjit Singh ..... Petitioner Versus Hem Raj and others ..... Respondents CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr.M.L.Puri, Advocate for the petitioner. Mr.Sukhmeet Singh, Advocate for respondents no.2, 4, 5 and 6. ***** RAJIVE BHALLA, J.(ORAL) The petitioner impugns an order dated 06.02.2010, passed by the Additional Civil Judge, Junior Division, Dera Bassi. The petitioner filed an application for permission to prove a panchayati compromise, dated 17.07.1998, by secondary evidence. Respondent no.2 denied the execution or the existence of the compromise. Respondents no.1 and 3, who are close relatives of respondent no.2 filed an amended written statement, admitting the execution of the compromise and in addition, pleaded that the compromise is in the possession of respondent no.2. The trial court dismissed the application by holding that as the petitioner has produced a photostat copy of the original compromise, he cannot be allowed to prove the compromise by secondary evidence. Counsel for the petitioner submits that the reasoning adopted by the trial court is not correct as secondary evidence has to be led C.R.No.1940 of 2010 -2- where the original document is lost or is for some reason not forthcoming. The mere fact that a photostat copy has been produced is irrelevant. It is further submitted that as respondents no.1 and 3, who are close relatives of respondent no.2, have admitted the execution of the compromise and in addition, have averred in their written statement that the compromise is in possession of respondent no.2, the trial court should have examined the matter in its entirety and allowed the application for leading secondary evidence. Counsel for respondents no.2, 4 ,5, and 6 on the other hand, submits that as the impugned order does not suffer from any error of jurisdiction or of law, the present revision should be dismissed. In the absence of any evidence as to the existence of the alleged compromise, the trial court rightly dismissed the application. I have heard counsel for the parties and perused the impugned order. The trial court, in my considered opinion, has committed an error of jurisdiction while dismissing the application for leading secondary evidence. An application for secondary evidence is filed to prove a document which is either lost or is not in possession of the party seeking to prove such a document. The fact that a photostat or typed copy may have been filed is entirely irrelevant. The judgment referred to and relied upon by the trial court relates to a photostat copy which was not proved by secondary evidence and is therefore, irrelevant for the present controversy. It would also be necessary to C.R.No.1940 of 2010 -3- notice that respondents no.1 and 3, who are father and brother of respondent no.2 have filed an amended written statement admitting the compromise and pleading that the written compromise is in possession of respondent no.2. The trial court ignored this material fact and in an erroneous exercise of jurisdiction, rejected the application for secondary evidence. In view of what has been stated hereinabove, the revision is allowed, the impugned order is set aside and the matter is remitted to the trial court to decide the application for secondary evidence afresh and in accordance with law after taking into consideration the facts referred to hereinbefore. Parties are directed to appear before the trial court on 10.05.2011 for further proceedings. 05.04.2011 [ RAJIVE BHALLA ] shamsher JUDGE