1 Gyan Prakash & Ors. Vs. Bhairudan and Anr. (S.B.CIVIL WRIT PETITION NO. 3953/06) Gyan Prakash & Ors. Vs. Bhairudan and Anr. (S.B.CIVIL WRIT PETITION NO. 3953/06) Dated:- 5.8.2010. HON'BLE MR.JUSTICE SANGEET LODHA Mr. D.D.Chitlangi, for the petitioners. Mr. Sajjan Singh for the respondent. 1. This writ petition is directed against order dated 18.4.2006 passed by Civil Judge, (SD), Bikaner in civil suit No. 48/04, whereby an application preferred by the petitioners/defendants to summon the Register maintained by the Stamp Vendor stands rejected. 2. The respondent/ plaintiff filed a suit for specific performance of the contract on the basis of an agreement to sell dated 25.10.1985 purported to be executed by the petitioner No.1/defendant No.1 on impressed stamp of Rs.3/- alleged to have been purchased on 18.10.1985 from Budhmitra, Stamp Vendor, Anoopgarh. 3. The suit is being contested by the petitioners/defendants alleging that the agreement to sell dated 25.10.85 is a fake and concocted document. It is alleged in the written statement that the defendant No.1 never visited Anoopgarh to purchase the Stamp for the 2 Gyan Prakash & Ors. Vs. Bhairudan and Anr. (S.B.CIVIL WRIT PETITION NO. 3953/06) alleged agreement. 4. On the basis of pleadings of the parties, the trial court framed the issues which includes issue No.4A framed in terms that the document dated 25.10.85 produced is collusive, fake and concocted and therefore, the same is not binding upon the defendants. 5. During the trial, the petitioners/defendants preferred an application to summon the Register of the Stamps sold maintained by Shri Budhmitra, Stamp Vendor at Anoopgarh which contains the entry of the Stamp dated 18.10.1985 alleged to have been purchased by the petitioner/defendant No.1 on which the alleged agreement to sell is executed. 6. The application has been rejected by the court below holding that though in the written statement filed the defendants have alleged that the agreement to sell dated 25.10.85 is a fake document, but there is no averments in the written statement that the stamp on which the agreement to sell is executed has not been purchased by the petitioner/defendant. The Court observed that the burden to prove the agreement to sell is upon the plaintiff and therefore, after evidence of the executor of the 3 Gyan Prakash & Ors. Vs. Bhairudan and Anr. (S.B.CIVIL WRIT PETITION NO. 3953/06) agreement and the witnesses in whose presence the agreement was executed, the actual position in respect of the agreement to sell shall come on record automatically. The Court observed that the Register sought to be summoned is very old and if the same is summoned it will take lot of time. Accordingly, the application has been rejected. 7. It is contended by learned counsel for the petitioners that the application has been rejected by the trial court on erroneous ground observing that it is not the case of the petitioner/defendant that the stamp on which the agreement is executed is not purchased by him. Learned counsel submitted that the petitioner/defendant has not only denied the execution of the document but in Para No.17 of the written statement, it has been specifically averred that the defendant No.1 never visited Anoopgarh so as to purchase the stamp and the alleged agreement for sale of the disputed properties was never executed. Learned counsel submitted that the reason given for rejection of the application by the trial court is ex-facie contrary to record. Learned counsel submitted that the 4 Gyan Prakash & Ors. Vs. Bhairudan and Anr. (S.B.CIVIL WRIT PETITION NO. 3953/06) Court has observed that the burden to prove the agreement is upon the plaintiff but has ignored the fact that the burden of proving the issue No.4A that the agreement to sell in question is fake and concocted document is upon the petitioner/defendant. Learned counsel submitted that mere delay likely to be caused in summoning the documents cannot be ground to reject the application if the document sought to be summoned is necessary and relevant for effective and complete adjudication of the lis between the parties. Accordingly, it is submitted by the learned counsel that the order impugned passed by the trial court deserves to be quashed and set aside. 8. On the other hand, learned counsel submitted that the application preferred by the petitioner/defendant was absolutely vague and the petitioner/defendant has not been able to establish the relevancy of the document for the adjudication of the lis between the parties. Learned counsel submitted that the Register maintained by the Stamp Vendor is deposited with the District Collector and being a public document, the petitioner can always obtain a certified copy thereof and produce the same before the 5 Gyan Prakash & Ors. Vs. Bhairudan and Anr. (S.B.CIVIL WRIT PETITION NO. 3953/06) Court. Learned counsel submitted that in this view of the matter, the Court below has committed no error in rejecting the application preferred by the petitioner/defendant. 9. It is to be noticed that the application has not been rejected by the trial court holding that the petitioner can produced the certified copy of the document sought to be summoned or that the document is not relevant for the determination of the controversy involved in the suit. A perusal of the averments made by the defendant in Para No.17 of the written statement reveals that it is the specific stand of the petitioner/defendant that he never visited Anoopgarh to purchase the stamp. Therefore, the reason assigned as aforesaid by the trial court for rejecting the application is ex-facie contrary to record. Indisputably, the burden to prove the issue No.4A as noticed above, is upon the petitioner/defendant and therefore, the Court below was not justified in rejecting the application noticing that the burden to prove the agreement is upon the plaintiff. The view taken by the Court that the document sought to be summoned is old and therefore, it will not be appropriate to summon the same inasmuch as it will take a long time is 6 Gyan Prakash & Ors. Vs. Bhairudan and Anr. (S.B.CIVIL WRIT PETITION NO. 3953/06) also erroneous. In considered opinion of this Court, while deciding the application, the trial court ought to have considered the relevancy of the document to the lis between the parties. It is true that it is not the stand taken by the petitioner/defendant in the application filed that they made the efforts to obtain the certified copy of the relevant entry in the Register maintained by the Stamp Vendor but then this aspect of the matter has also not been examined by the trial court. Thus, on the facts and in the circumstances of the case, in considered opinion of this Court, the impugned order cannot be sustained and the matter deserves to be remanded to the trial court to consider the application preferred by the petitioners afresh in accordance with law. 10. Accordingly, the writ petition is allowed. The order impugned dated 18.4.2006 passed by the trial court is quashed. The trial court is directed to decide the application preferred by the petitioners/defendants for summoning the document afresh, after hearing both the parties, in accordance with law. No order as to costs. (SANGEET LODHA),J.