CR No.3003 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.3003 of 2008 Date of decision: 3.3.2009 Budh Singh and others ......Petitioners Versus Balbir Singh and others ......Respondents CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Ashok Verma, Advocate for the petitioners. Mr. Ashok Singla, Advocate and Mr. H.S. Baath, Advocate for respondents No.1 to 3. * * * Rakesh Kumar Garg, J. The present revision petition has been filed by the plaintiffs challenging the impugned order dated 24.4.2008 passed by the Civil Judge (Jr. Division) Sirsa whereby the prayer of the petitioner for grant of permission to lead secondary evidence i.e. photocopy of the agreement, has been declined. As per the averments made in the present petition, both the parties i.e. the petitioners and respondent No.1 arrived at a family settlement which was reduced into writing in the form of a memorandum (Yadasht) dated 30.5.1997. It was further agreed that in order to give effect to and implement the terms and conditions of the family settlement incorporated in the Memorandum/Agreement dated 30.5.1997 the petitioners would file a suit in the Civil Court at Sirsa and respondent No.1 took the responsibility of getting the plaint of the suit drafted in accordance with the terms and conditions of the family settlement from an Advocate practising at Dabwali and well known to him and the plaint was accordingly CR No.3003 of 2008 2 got drafted by respondent No.1 and signatures of the petitioners were obtained thereon as also on the Power of Attorney and the suit was filed at Sirsa through Mr. Vijay Singh, Advocate, Sirsa. However, there was no occasion for the subject matter of the plaint having been read out or explained to the petitioners. Respondent No.1 being their real brother, the petitioners reposed unstinted faith in him and had no reason to doubt his intentions and bona fides. The petitioners had no knowledge of the subject- matter of the suit and had come to the Court at Sirsa only once when their statements were recorded. The suit was decreed by the Civil Judge (Sr. Division), Sirsa vide judgment and decree dated 27.3.2002. However, the petitioners, on looking into the Civil Court decree dated 27.3.2002, were shocked to learn that they had been cheated and defrauded by the respondents inasmuch as, an area of about 12 acres of their land of village Bhokhra had been taken instead of an area of 7 acres agreed to be transferred to the respondents in lieu of their 13 acres of land of village Mangalia. Besides this, an area of 7 acres had been agreed to be transferred to the respondents from joint holding whereas the respondents on the basis of the said Civil Court decree, obtained 12 acres of land in specific field numbers. It is the further case of the petitioners that it had also been agreed that the respondents would pay the price of the area in excess of 7 acres at the rate of Rs.2,50,000/- per acre. However, the respondents did not even disclose to the petitioners that they had taken an area of 12 acres instead of 7 acres. On coming to know about the fraud committed by the respondents through the Civil Court decree dated 27.3.2002, the petitioners filed suit for declaration on 16.7.2004 to the effect that the parties are continuing to be the owners and in possession of their respective parcels of land and that Civil Court decree dated 27.3.2002 was null and void, being based upon fraud and CR No.3003 of 2008 3 misrepresentation. It has been further pleaded in the petition that since the original memorandum of family settlement dated 30.5.1997 was handed over to respondent No.1 for the purpose of drafting the plaint and had remained in his possession and the petitioners were having only a photocopy thereof, they moved an application dated 24.1.2008 for permission to produce the photocopy of the said agreement dated 30.5.1997 by leading secondary evidence as the respondents had not produced the original draft. Since the family settlement was the basis of the suit, it was necessary to produce the aforesaid photocopy of the agreement by way of secondary evidence. The respondents contested the application by filing reply specifically stating that no such document was in their possession and on receiving the copy of plaint, they denied the existence of the aforesaid document and filed an application under Order 11 rule 12 CPC directing the petitioners to produce document dated 30.5.2007 so that the respondents could file written statement. Thus, the respondents never admitted the existence of any aforesaid document The trial Court dismissed the aforesaid application vide impugned order observing that existence of the document in question has not been proved, so the petitioners are not entitled to lead secondary evidence of the same. Challenging the aforesaid impugned order, the learned counsel for the petitioners has vehemently contended that the respondents had made an application for directing the petitioners to produce the original draft of agreement and the said application was declined which obviously means that the original is not in the custody of the petitioners and thus, the petitioners have sought to produce photostat copy of the original entitling them to lead the secondary evidence. The trial Court while dismissing his CR No.3003 of 2008 4 application has not properly appreciated this aspect of the case and therefore, the impugned order is liable to be set aside and the petitioners are entitled to lead secondary evidence of the agreement dated 30.5.1997. On the other hand, learned counsel for the respondents has vehemently argued that the trial Court was justified in passing the impugned order as requirement of Section 65 of the Evidence Act for permission to lead secondary evidence has not been fulfilled in the present case and therefore, the petitioners are not entitled to lead secondary evidence of the document in question. No such fact was pleaded in the suit that document in question was not in their possession. Moreover, they never pleaded that the same was in their custody. Thus, the impugned order was passed legally. I have heard learned counsel for the parties. It is well settled that before permission to lead secondary evidence the existence and loss of such document must be proved. In the present case, the trial Court had rejected the application for leading secondary evidence on the ground that the petitioner has failed to prove the existence of the document in question. The solitary contention of the learned counsel for the petitioner in this case is that since the respondents had filed an application under Order 11 rule 12 CPC directing the petitioners to produce the original and the said application was declined, it would mean that the original is not in the custody of the petitioners and therefore, the petitioners have successfully proved the existence of the document in question and are entitled to prove the same by leading secondary evidence. The contention of the learned counsel for the petitioners cannot be accepted. There is no evidence on record that this document is in existence. The respondents have nowhere pleaded that the said CR No.3003 of 2008 5 document was in their custody. Neither they have admitted at any point of time that the said document was handed over to them. It was for the petitioners to prove the existence of the alleged agreement dated 30.5.1997 by leading positive evidence. However, the petitioners have failed miserably to prove the aforesaid fact. In the absence of any evidence regarding the existence of the document in question the self supporting contention as raised by the petitioners, cannot be accepted simply because the respondents' application directing the petitioners to produce the document in question was declined. Thus, for the reasons recorded above, I find no fault in the impugned order. The revision petition is dismissed. March 3, 2009 (RAKESH KUMAR GARG) ps JUDGE CR No.3003 of 2008 6