Civil Revision No. 7133 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Revision No. 7133 of 2009 Date of decision : April 19, 2010 Ajmer Singh and another ....Petitioners versus Teja Singh and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Gulzar Mohd. Advocate, for the petitioners Mr. GS Sandhu, Advocate, for respondent no. 1 L.N. Mittal, J. (Oral) Defendants no. 4 and 5 have filed instant revision petition under Article 227 of the Constitution of India assailing order dated 17.9.2009, Annexure P/7, passed by learned Additional Civil Judge (Senior Division), Khanna thereby permitting plaintiff-respondent no. 1 to lead secondary evidence of alleged agreement/writing dated 20.3.1993 subject to all just exceptions and existence thereof. The plaintiff alleged that the original agreement/writing dated 20.3.1993 is in possession of the defendants whereas defendants denied possession thereof. I have heard learned counsel for the parties and perused the case file. Civil Revision No. 7133 of 2009 -2- Learned counsel for the petitioners vehemently contended that the trial court proceeded on erroneous assumption that the defendants admitted the existence of agreement/writing dated 20.3.1993 because defendants had moved application Annexure P/2 for production of the said agreement/writing whereas in fact, the defendants in their application Annexure P/2 had not admitted the existence of the said agreement but had simply mentioned that the plaintiff be directed to produce the original document of which photostat copy has been placed on record. There is considerable force in the aforesaid contention. The defendants nowhere admitted the existence of writing dated 20.3.1993 but the trial court proceeded on erroneous assumption that the defendants admitted existence of said document. Perusal of application Annexure P/2 reveals that the defendants never admitted the existence of the said document. In addition to the aforesaid, learned counsel for the petitioners also contended that agreement/writing dated 20.3.1993 has not been referred to in the plaint and therefore, plaintiff-respondent no. 1 cannot be permitted to lead secondary evidence of the said agreement when the same is not part of the pleadings. There is considerable merit in this contention as well. Plaintiff did not refer to agreement dated 20.3.1993 in the plaint at all and the plaintiff also did not file any replication to refer to any such document. Consequently, the said document being not pleaded by the plaintiff, he cannot be permitted to lead secondary evidence thereof. Learned counsel for respondent no. 1 contended that the defendants themselves moved application Annexure P/2 for production of agreement dated 20.3.1993. However, learned counsel for the petitioners Civil Revision No. 7133 of 2009 -3- explained that the said application Annexure P/2 was moved because photostat copy of the agreement dated 20.3.1993 had been placed on record by the plaintiff and therefore, the defendants wanted to inspect the original document to file proper written statement. In view of this submission on behalf of the petitioners, the contention raised by learned counsel for plaintiff-respondent no. 1 has no substance. The defendants denied the existence of document dated 20.3.1993 and the plaintiff has not pleaded the same. Consequently, secondary evidence of the said document cannot be permitted to be adduced by the plaintiff-respondent no. 1. For the reasons recorded hereinabove, I am of the considered opinion that impugned order dated 17.9.2009, Annexure P/7 is illegal and unsustainable. The revision petition is accordingly allowed and impugned order dated 17.9.2009, Annexure P/7 passed by the trial court is set aside and application moved by plaintiff-respondent no. 1 for leading secondary evidence of agreement/writing dated 20.3.1993 is dismissed. ( L.N. Mittal ) April 19, 2010 Judge 'dalbir'