Civil Revision No. 759 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Revision No. 759 of 2010 Date of decision : August 05, 2010 Pritam Singh and others ....Petitioners versus Malkiat Singh and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. JS Brar, Advocate, for the petitioners Mr. JS Gill, Advocate, for respondents no. 1 to 3 L.N. Mittal, J. (Oral) Defendants no. 2 to 4, 8 to 10 have filed the instant revision petition under Article 227 of the Constitution of India impugning order dated 1.12.2009, Annexure P/1, passed by learned Additional Civil Judge (Senior Division), Faridkot thereby allowing application moved by respondents no. 1 to 3/plaintiffs for leading secondary evidence of sale deed dated 6.5.1944 executed by Natha Singh in favour of Partap Singh and of Bahi writings dated 14.6.1963 executed by Daan Singh in favour of Partap Singh regarding redemption of mortgage of 1/3rd share of the land and executed by Jeet Singh in favour of Partap Singh regarding redemption of 2/3rd share of the land, subject to the condition that the plaintiffs shall prove Civil Revision No. 759 of 2010 -2- existence and loss of the documents at the time of leading evidence. I have heard learned counsel for the parties and perused the case file. Learned counsel for the petitioners vehemently contended that the aforesaid documents have not been pleaded and therefore, secondary evidence thereof cannot be permitted. Reliance in support of this contention has been placed on judgment of this Court in the case of Joginder Pal versus Parduman Singh, 1998(3) PLR 303. It was also contended that existence and loss of the documents has not been proved and therefore, secondary evidence of the documents cannot be permitted. Reliance in support of this contention has been placed on four judgments of this Court in Surinder Kumar versus Murari Lal, 1993(2) RRR 535; Jagta versus Ruldu, 1993 PLJ 203; Gurdial Kaur versus Registrar, Cooperative Societies, Punjab, Chandigarh, 2000 (1) PLR 156 and Banarsi Dass versus Om Parkash and others, 2005(2) PLR 358. On the other hand, learned counsel for respondents no. 1 to 3 contended that respondents no. 1 to 3/plaintiffs pleaded in the plaint specifically that their predecessor Partap Singh had purchased suit land from Natha Singh and consequently, the sale deed executed by Natha Singh in favour of Partap Singh is sought to be proved by secondary evidence. It was also contended that the suit land was under mortgage and the mortgage was redeemed vide writings dated 14.6.1963 and therefore, secondary evidence of the said writings is to be adduced. I have carefully considered the rival contentions. In so far as Bahi writings dated 14.6.1963 regarding redemption of mortgage are Civil Revision No. 759 of 2010 -3- concerned, the plaintiffs cannot be permitted to lead secondary evidence thereof because there is no reference to any mortgage or redemption thereof much less to the Bahi writings in question in the pleadings of the plaintiffs. Consequently, even primary evidence of the said Bahi writings cannot be permitted in the absence of pleadings and therefore, the question of permitting the plaintiffs to lead secondary evidence of the said Bahi writings did not arise, being completely beyond pleadings. The impugned order of the trial court permitting the plaintiffs to lead secondary evidence of said bahi writings is, thus, patently illegal and unsustainable. As regards, secondary evidence of the sale deed dated 6.5.1944 is concerned, the plaintiffs specifically pleaded in the plaint repeatedly that their predecessor Partap Singh had purchased the suit land from Natha Singh. The sale deed regarding the said sale executed by Natha Singh in favour of Partap Singh is sought to be proved by secondary evidence. Consequently, it cannot be said that the proposed secondary evidence of sale deed is beyond the pleadings although sale deed was not specifically mentioned in the plaint. Judgment in the case of Joginder Pal (supra) is not applicable to the facts of the instant case because in that case agreement pleaded in the plaint was dated 27.2.1979 but secondary evidence sought to be produced related to agreement dated 19.1.1979. In these circumstances, order of the trial court dismissing application for secondary evidence was upheld by this Court. In the instant case, however, there is no such discrepancy or contradiction. In view of the aforesaid, there is no illegality in the impugned order of the trial court permitting the plaintiffs to lead secondary evidence Civil Revision No. 759 of 2010 -4- of the sale deed and the said order to that extent has to be upheld. As regards, the contention that existence and loss of the said documents has not been proved, permission for secondary evidence has been granted subject to the condition that the plaintiffs shall prove existence and loss of the said documents while leading evidence. It may be added that the sale deed in question is stated to be registered sale deed. For the reasons recorded hereinabove, the instant revision is allowed partly and impugned order Annexure P/1 passed by learned trial court is set aside to the extent of permitting plaintiffs to lead secondary evidence of Bahi writings dated 14.6.1963. However, the impugned order is upheld to the extent of permitting plaintiffs to lead secondary evidence of the sale deed dated 6.5.1944 subject to the condition that the plaintiffs shall prove existence and loss of the said document while leading evidence. The revision petition stands disposed of accordingly. Nothing in this order shall effect the merits of the suit. ( L.N. Mittal ) August 05, 2010 Judge 'dalbir'