C. R. No. 7708 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : C. R. No. 7708 of 2009 Date of Decision : May 18, 2010 Fauja Singh alias Mithu .... Petitioner Vs. Amarjit Singh and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Lal Singh Sandhu, Advocate for the petitioner. Mr. S. K. Jain, Advocate for respondent no. 1. * * * L. N. MITTAL, J. (Oral) : Fauja Singh alias Mithu – plaintiff no.1 has filed the instant revision petition under Article 227 of the Constitution of India impugning order dated 10.12.2009 (Annexure P-1) passed by learned Additional Civil Judge (Senior Division), Dabwali, thereby allowing application moved by sole defendant-respondent no.1 Amarjit for secondary evidence. Suit has been filed by petitioner and proforma respondents no.2 to 4 against respondent no.1. It is undisputed that vide lease deed dated 03.03.2008, plaintiffs leased out 24 kanals land to the defendant for digging C. R. No. 7708 of 2009 2 and using earth therefrom for brick kiln, for the period from 03.03.2008 till 31.08.2014. Lease money was settled to be Rs.1,20,000/- per annum. The plaintiffs' case is that the defendant did not pay the lease money and therefore, the lease deed stands cancelled. The plaintiffs also sought injunction restraining the defendant from running the brick kiln. The plaintiffs also sought mandatory injunction directing the defendant to hand over possession of the suit land and brick kiln to the plaintiffs. The defendant alleged that he had paid Rs.3,00,000/- as lease money for 2½ years to the plaintiffs on 03.03.2008 i.e. the date of lease deed itself vide separate receipt. The defendant alleged that the original receipt is in the possession of the plaintiffs. The plaintiffs denied execution of any such receipt. The plaintiffs also denied having received any lease money. The plaintiffs obviously denied possession of any such receipt. In view of the aforesaid, the defendant made application for secondary evidence of the receipt. The said application has been allowed by the trial court. I have heard learned counsel for the parties and perused the case file. Learned counsel for the petitioner vehemently contended that if the defendant had paid Rs.3,00,000/- as lease money to the plaintiffs on 03.03.2008 i.e. the date of lease deed itself, payment thereof would have been recited in the lease deed as well. It was also contended that the C. R. No. 7708 of 2009 3 original receipt would have been in possession of the defendant, if he had made any such payment. On the other hand, learned counsel for defendant-respondent no.1 contended that if the defendant had not paid any lease money to the plaintiffs, they would not have allowed the defendant to use the suit land for more than a year as the suit was filed on 22.07.2009. It was also contended that defendant cannot forge thumb impressions of the plaintiffs on the receipt. I have carefully considered the rival contentions. I would not like to express any opinion regarding the merits of the claims of rival parties regarding payment or non-payment of lease money. However, it has to be noticed that if the defendant had paid the lease money through receipt, then the original receipt would have been in the possession of the defendant and not of the plaintiffs. There is no explanation whatsoever on behalf of the defendant as to why the original receipt was in the possession of the plaintiffs and not of the defendant. In view thereof, the defendant cannot be permitted to lead secondary evidence of the alleged receipt. The very basis of the defendant's claim cannot be accepted. For the reasons recorded above, the impugned order of the trial court cannot be sustained. The revision petition is accordingly allowed. Impugned order dated 10.12.2009 (Annexure P-1) passed by the trial court is set aside and application moved by defendant – respondent no.1for C. R. No. 7708 of 2009 4 permission to lead secondary evidence of receipt dated 03.03.2008 is dismissed. However, it is again expressly made clear that nothing observed herein above shall be construed to be expression of opinion on the merits of the suit. May 18, 2010 ( L. N. MITTAL ) monika JUDGE