RSA No.4759 of 2010 (O & M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4759 of 2010 (O & M) Date of Decision: 04.02.2011 Charanjit alias Charan Dass ……Appellant Versus Shakuntla Devi and others …...Respondents Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Naresh Ghai, Advocate for the appellant. L.N. MITTAL, J (ORAL) Plaintiff-Charanjit alias Charan Dass, having failed in both the Courts below, has filed the instant second appeal. Plaintiff-appellant filed suit against defendant Major Singh (since deceased and represented by respondents as his legal representatives) alleging that the defendant agreed to mortgage the suit property with the plaintiff for Rs.70,000/- and received Rs.55,000/- as earnest money on 30.04.1999 and executed agreement in this regard. It was agreed that mortgage deed would be executed on or before 31.10.1999 on receipt of balance mortgage money of Rs.15000/-. Accordingly on 29.10.1999, plaintiff approached the defendant for doing the needful with balance money of Rs.15000/-. The defendant, however, requested for further time. The defendant received the balance amount of Rs.15000/- and extended the time of execution of mortgage deed upto 31.01.2000 by making endorsement on the back of the agreement. Accordingly on 31.01.2000, the plaintiff went to the office of Sub-Registrar for getting RSA No.4759 of 2010 (O & M) - 2 - the mortgage deed executed, but the defendant did not turn up. On 15.02.2000, the plaintiff went to Civil Court for engaging counsel for legal remedy, but the original agreement was misplaced and photostat copy thereof remained with the plaintiff. Loss of the original agreement was reported to the police, but no action was taken by the police. Plaintiff served notice dated 18.03.2000 on the defendant requiring him to execute the mortgage deed and to deliver possession of the suit property, but to no effect. Accordingly, the plaintiff filed suit for possession of the suit property by specific performance of the mortgage agreement. In the alternative, the plaintiff prayed for recovery of Rs.70000/- with interest at the rate of 18% per annum. The defendant broadly controverted the plaint allegations. The defendant pleaded that he never agreed to mortgage the suit land in favour of the plaintiff nor received Rs.55000/- as earnest money nor executed the alleged agreement. The defendant also denied receipt of Rs.15000/- on 29.10.1999 and also denied endorsement of extension of date of mortgage deed on the back of the agreement. Various other pleas were also raised. Learned Civil Judge (Junior Division), Pathankot vide judgment and decree dated 14.11.2007 dismissed the plaintiff’s suit. First appeal preferred by plaintiff has been dismissed by learned Additional District Judge, Gurdaspur vide judgment and decree dated 12.08.2010. Feeling aggrieved, plaintiff has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. RSA No.4759 of 2010 (O & M) - 3 - On plaintiff’s application for permission to lead secondary evidence of agreement dated 30.04.1999 and endorsement dated 29.10.1999, the plaintiff was allowed to lead secondary evidence subject to proof of existence and loss of the original documents. Both the Courts below have, however, held that the plaintiff has failed to prove the existence and loss of the original documents and, therefore, secondary evidence thereof is not admissible and the plaintiff has been non-suited resultantly. Learned counsel for the appellant vehemently contended that existence and loss of the original documents is proved by the testimony of the plaintiff. It was also pointed out that the plaintiff reported the matter to the police and when no action was taken by the police, the plaintiff sent written letter by registered post to the police, but still action was not taken. It was accordingly contended that existence and loss of the original documents is proved from plaintiff’s evidence. I have carefully considered the aforesaid contention, but find no merit therein. The plaintiff alleged that the original documents were lost on 15.02.2000. However, thereafter the plaintiff sent notice dated 18.03.2000 to the defendant, but loss of the original documents was not mentioned in the said notice. The plaintiff also alleged that on 15.02.2000 itself, he reported the loss of the documents to the police, but no action was taken by the police. It would depict that the police recorded the report, but did not take any consequent action. However, no report lodged by the plaintiff with the police has been produced in the evidence. On the other hand, the plaintiff pleaded that he sent letter by registered post on RSA No.4759 of 2010 (O & M) - 4 - 18.02.2000 to the police intimating the loss of the original documents. He produced copy of the said intimation dated 18.02.2000 Ex.P-6 along with postal receipt Ex.P-7. However, postal receipt Ex.P-7 is dated 16.05.2000 and not dated 18.02.2000, the date of intimation Ex.P-6. The suit was filed on 17.05.2000. It is thus apparent that postal receipt was obtained only a day before the filing of the suit and it is not explained as to why the plaintiff kept the intimation dated 18.02.2000 for almost three months before dispatching it to the police vide postal receipt dated 16.05.2000. In addition to it, the plaintiff also stated in cross-examination that he had reported the matter to the police, but did not obtain copy of the report from the police station. It would again depict that report was actually recorded by the police. However, no such report has been produced in evidence. The plaintiff also stated in cross-examination that he filed the suit on the same day on which the original documents were lost in the Court Complex. The documents were allegedly lost on 15.02.2000. However, the suit was filed on 17.05.2000. It again creates grave doubt about the veracity of the version of the plaintiff regarding loss of original documents. Everything appears to have been manipulated regarding alleged loss of original documents just before the filing of the suit, although it was pleaded that the original documents were allegedly lost three months before the filing of the suit. For the reasons aforesaid, I find that the plaintiff- appellant has failed to establish the existence and loss of original documents and, therefore, secondary evidence thereof was not admissible in evidence. In the absence thereof, plaintiff has been RSA No.4759 of 2010 (O & M) - 5 - rightly non-suited. Concurrent finding of both the Courts below that existence and loss of original documents is not proved is justified by the evidence on record and is supported by cogent reasons. Circumstances noticed in the preceding paragraph justify the said finding. The said circumstances individually may or may not be sufficient to arrive at this conclusion, but considered cumulatively, the said circumstances are sufficient to arrive at the aforesaid finding. In any event, the aforesaid concurrent finding of the Courts below cannot be said to be perverse or illegal in any manner so as to warrant reversal or interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly, the appeal is found to be lacking any merit and is, therefore, dismissed in limine. (L. N. MITTAL) JUDGE 04.02.2011 A.kaundal