Civil Revision No.6070 of 2010(O & M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.6070 of 2010(O & M) Date of Decision:21.09.2010 The New India Assurance Company Ltd. .....petitioner Versus M/s Jagdamba Foods Limited, District Karnal .....respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG 1.Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.V.Ramswaroop,Advocate for the petitioner **** RAKESH KUMAR GARG J. By way of this petition, the petitioner-Company has challenged the impugned order dated 26.08.2010 passed by Additional Civil Judge(Senior Division), Karnal in Civil Suit No.580 of 2007 , whereby the petitioner-Company has been directed to produce the survey report dated 18.04.1998 and letter dated Nil, failing which adverse inference shall be drawn against them further holding that the plaintiff-respondent would be entitled to lead secondary evidence has been challenged. As per the averments, plaintiff-respondent filed a suit for recovery against the petitioner pleading that the petitioner had failed to settle his claim. It is further averred that plaintiff-respondent submitted the required documents along with survey report dated 18.04.1998 to the petitioner-company in original, along with letters and the petitioner was bound to produce the said documents before the court and, therefore, a direction be given to the company to place on record the aforesaid survey Civil Revision No.6070 of 2010(O & M) 2 report failing which the defence of the defendants be struck off and the plaintiff-respondents be allowed to prove the above said survey report and letter dated nil by way of secondary evidence. The aforesaid application of the plaintiff-respondent was contested by the petitioner stating that the aforesaid application was nothing but an abuse of process of law as despite many opportunities, plaintiff-respondent has not led any evidence and the same is filed to further delay proceedings. It was further averred that the plaintiff was supposed to prove his own case and cannot ask for production of the documents and the application be rejected. It was further stated that copy of the survey report was with the plaintiff-respondent and he can prove the same in accordance with law. However the trial Court, vide impugned order allowed the aforesaid prayer of the plaintiff-respondent and directed the petitioner to produce the aforesaid survey report failing which the plaintiff was held entitled to prove the same by way of secondary evidence. I have heard learned counsel for the petitioner and perused the impugned order and other documents placed on record of the case. In their reply to the aforesaid application to produce the survey report etc.the petitioner has not specifically denied the fact that original survey report was submitted to the petitioner-Company by the plaintiff-respondent. Section 65 (a) of the Evidence Act,1872, clearly stipulates that in such a case where a document sought to be placed on record of the case is in possession of the opposite party, such a party can be directed to produce on record such document and in case of its failure the applicant party is entitled to prove the said document by way of secondary evidence. Thus, it does not lie in the mouth of petitioner-Company to submit that it is for the plaintiff-respondent to prove his own case and petitioner-Company cannot be directed to produce the aforesaid document. Had the petitioner- Civil Revision No.6070 of 2010(O & M) 3 Company denied the possession of original survey report in their record, then the plaintiff-respondent could have still proved the aforesaid document by way of leading secondary evidence under the provisions of Section 65 (c) of the Indian Evidence Act by proving the existence and loss of the said document. Since, it is the admitted case of the parties that original of the aforesaid document is in possession of the petitioner; the petitioner is under legal obligation to produce the same in the Court and in case of their failure the plaintiff-respondent is definitely entitled to prove the same by way of secondary evidence. Thus, no interference is called for in the impugned order. Dismissed. (RAKESH KUMAR GARG) JUDGE 21.09.2010 neenu