C.R. No. 5929 of 2003 1 C.R. No. 5930 of 2003 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 5929 of 2003 Date of Decision: 29.07.2009 Balwinder Singh son of Aroor Singh son of Ranga Singh r/o village Shamkhera (Dhani), Tehsil Malout, District Muktsar. ... Revision-Petitioner Versus M/s Kisan Commission Agents, New Grain Market, Malout through Sardool Singh son of Jodh Singh, registered partner r/o Malout, District Muktsar. ...Respondent C.R. No. 5930 of 2003 Date of Decision: 29.07.2009 Joginder Singh sonof Harbans Singh son of Dhani Kundan Singh, r/o village Shamkhera, Tehsil Malout, District Muktsar. ... Revision-Petitioner Versus M/s Kisan Commission Agents, New Grain Market, Malout through Sardool Singh son of Jodh Singh, registered partner r/o Malout, District Muktsar. ...Respondent C.R. No. 5929 of 2003 2 C.R. No. 5930 of 2003 CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Jasdeep Singh, Advocate, for the revision-petitioners, in both the revision-petitions. Mr. Harsh Aggarwal, Advocate, for the respondent, in both the revision-petitions. SHAM SUNDER, J. * * * * This judgement shall dispose of Civil Revision No. 5929 of 2003, filed by Balwinder Singh, and Civil Revision No. 5930 of 2003, filed by Joginder Singh, under Article 227 of the Constitution of India, against the order dated 14.11.2003, rendered by the Court of Civil Judge (Senior Division), Malout, District Muktsar, vide which, it accepted the applications for secondary evidence, filed by the plaintiff/respondent. 2. The plaintiff/respondent, filed two suits for recovery, on the basis of account books (bahis). During the pendency of the suits, it moved two an applications, for secondary evidence of the account books (bahis), on the ground, that earlier the plaintiff/respondent firm was having the partners namely Sardool Singh, Harinder Singh, and Harkiran Singh. Thereafter, a dispute arose, between the partners, and the plaintiff/respondent, filed a suit for rendition of accounts, against the partners. Since the account books and cheque books etc. were in the possession of Harinder Singh and Harkiran Singh, the other partners, the plaintiff/respondent, had no access to the same. The said parnters and Munim of the firm, were summoned, but they failed to produce the original account books (bahis). It was further stated that, it was, thus, beyond the control of the plaintiff/respondent, to produce C.R. No. 5929 of 2003 3 C.R. No. 5930 of 2003 the original account books (bahis). Accordingly, two applications for secondary evidence, were moved, which were allowed, vide order dated 14.11.2003, passed by Additional Civil Judge (Senior Division) Malout. 3. Feeling aggrieved, the aforesaid revision-petitions, have been filed by the revision-petitioners. 4. I have heard the Counsel for the parties, and have gone through the record of the case, carefully. 5. The Counsel for the revision-petitioners, submitted that, as many as 16 opportunities, were granted, to the plaintiff, to produce and conclude its evidence, and even costs, were imposed upon it. He further submitted that no mandatory notice, under Section 66 of the Indian Evidence Act, was served upon the other partners, to produce the original account books, if the same were available with them. He further submitted that the said account books, were not, in possession of the other partners. He further submitted that since the affidavit, in support of the application was not filed by the plaintiff, the same was liable to be dismissed, on that ground. He further submitted that the order, being illegal, was liable to be set aside. 6. On the other hand, the Counsel for the respondent, submitted that, once the other partners, against whom, the suit for rendition of accounts, was filed, by the plaintiff, and who were in possession of the original account books, failed to produce the same, even after one of them alongwith the Munim, was summoned, the plaintiff, had no other alternative, than to file an application for secondary evidence. He further submitted that, even the original account books (bahis), were produced, at the initial stage, on 08.09.2000, but the defendant, did not come present, and C.R. No. 5929 of 2003 4 C.R. No. 5930 of 2003 thereafter, the plaintiff, was directed to produce the same, on 21.09.2000. He further submitted that, on 21.09.2000, the books of account (bahis), were brought by the plaintiff, which were inspected by the defendant alongwith his Counsel. He further submitted that the order impugned, being legal and valid, was liable to be upheld. 7. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the revision-petitions, deserve to be dismissed, for the reasons to be recorded, hereinafter. Copies of some zimni orders, passed in the suit, which have been produced, by the Counsel for the respondent are taken on record. It is evident, from the order dated 08.09.2000, that the plaintiff alongwith the original account books, was present, but the defendant, was not present. The plaintiff, was directed to appear on 21.09.2000, alongwith the original account books. He brought the original account books, on 21.09.2000, which were seen by the defendant, but he denied his signatures, on the entries. It is evident from the zimni order dated 18.12.2002, that arbitrators Surinder Pal Singh Bhullar and Iqbal Singh, appeared before the Court and made statements, that account books, were in possession of Harkiran Singh and Harinder Singh, partners of the firm, who were not producing the same. Accordingly, they were summoned through bailable warrants, for 19.03.2003. It is further evident, from the zimni order dated 09.05.2003, that Harkiran Singh and Harinder Singh, made statements, that they had not brought the original account books. The photocopies of the relevant entries of the account books, were produced by the plaintiff/respondent, at the time of filing the suit. Since the original account books, when the same were in possession of the plaintiff, were produced, it could not be said that the same C.R. No. 5929 of 2003 5 C.R. No. 5930 of 2003 were not in existence, at any point of time. From the aforesaid documents, it is also evident that, later on, the account books, came into the possession of Harkiran Singh and Harinder Singh, but they did not produce the same. In these circumstances, no alternative, was left with the plaintiff, than to move an application for secondary evidence. When Harkiran Singh and Harinder Singh, partners of the firm, who were in possession of the account books, were summoned by the Court, and appeared therein, no separate notice, under Section 66 of the Evidence Act, was required to be served upon them, by the plaintiff. In these circumstances, in my opinion, the trial Court, was justified, in allowing the application, for secondary evidence. 8. The Counsel for the revision-petitioners, placed reliance on State of Rajasthan Vs. Khemraj and others, 2000(3) Civil Court Cases 14 (SC), in support of his contention, that, in the absence of filing of an affidavit, in support of the application, under Section 65 of the Indian Evidence Act, for secondary evidence, the same was liable to be dismissed. The perusal of the facts of the aforesaid case, clearly goes to show that, the trial Court, rejected the application, in that case, for secondary evidence, as it noticed various defects, in the pleadings of the applicants/plaintiffs. It was, under these circumstances, that the revision-petition, filed against the order of the trial Court, was dismissed by the High Court, and Civil Appeal filed in the Apex Court, was dismissed by it. In the instant case, from the copy of the application (Annexure P2), which was filed, for seeking permission to lead secondary evidence, it is evident, that the same was verified. Not only this, even the trial Court, did not find any defects, in the pleadings of the plaintiff. In this view of the matter, the application for secondary evidence, was not liable to be rejected. No help, therefore, can be C.R. No. 5929 of 2003 6 C.R. No. 5930 of 2003 drawn by the Counsel for the petitioner, from State of Rajasthan's case (supra). The submission of the Counsel for the petitioner, therefore, being without merit, must fail, and the same stands rejected. 9 The order dated 14.11.2003 impugned, does not suffer from any illegality, material irregularity or perversity, warranting the interference of this Court, in its revisional jurisdiction, under Article 227 of the Constitution of India. The same is liable to be upheld. 10. For the reasons recorded above, Civil Revision No. 5929 of 2003, filed by Balwinder Singh, and Civil Revision No. 5930 of 2003, filed by Joginder Singh, being devoid of merit, must fail, and the same, are dismissed. The parties, are directed to appear, in the trial Court, on 24.08.2009, at 10.00 A.M., for further proceedings. 29.07.2009 (SHAM SUNDER) Amodh JUDGE