(S 2 c^y IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR {C.G^ W.P.NO. J-733 /2003 PETITIONER Fekanlal Sahu, son of Shri Kalaram ^Sahu, aged about 68 years cultivator, / resident of village-Amagohan ^' (Khoi.gsara), Tah. Kota, Distt. Bilaspur (Chhattisgarh). RESPONDENTS ^" ^w> .^o^'"" ^\^^"" ^'^w"~ y ..^. /-^••f VERSUS 1-) ;Smt. Bhakti Das widow of Dinesh Chandra, aged about 70 years, resident of Kargi Road Kota, Tah. Kota, Distt. Bilaspur (Chhattisgarh). 2) Deepak Kumar Das, aged about 42 years, son of Shri Dinesh Chandra Das, resident ofBALCO, Korba, Tah and Distt. Korba, Chhattisgarh 3) Pradeep Kumar Das, aged about 30 years, son of Shri Dinesh Chandra Das, resident of Manendragarh, Distt. Sarguja (Chhattisgarh). 4.) .•Smt. Putul Dutta, wife ofA.K. Dutta, aged about 50 years, (daughter of Dinesh Chandra Das) resident of Pandunagar, Shahdol, Distt. Shahdol (Chhattisgarh). 5) Smt. Kajal daughter of Dinesh Chandra Das, aged about 44 years, resident of Kargi Road Kota, Tah Kota, Distt. Bilaspur (Chhattisgarh). ^ 6) Smt. Ujjal daughter of Dinesh Chandra Das, aged about 32 years, resident of Kargi Road Kota, Tah. Kota, Distt. Bilaspur (Chhattisgarh). 7) • Sheo Singh aged about 30 years, son of heera Singh, cultivator and teacher, resident of Amagohan (Khongsara, -Tah. Kota, Distt. Bialspur (Chhattisgarh) 8) Narendra Singh, aged about 27 years, son of Shri heera Singh, 9) Devendra Singh, aged about 25 years, son 01 Shri Heera Singh. ^ 1_ 10) Surendra Singh, aged about 20 years, son of Shri Heera Singh. r- ^ 11) Smt. Triveni Bai, aged about 63 years, widow of Heera Singh. All residents of village Amagohan Kongsara, Tah. Kota, Distt. Bilaspur (Chhattisgarh). 12) ^ ^SecQnd-CmL^Iud^^-aass^Bilaspui <(ChhaJ.tisgarh).' ___ .> ^ WRIT PETITION UNDER ARTICLE 227 OF T^E CONSTITUTION OF INDIA. XI-HC-22 ^-ocj r<<Nt<n<i, ^^TT^, fcldiyy 3TI^?r^?i<^ +lM<ytl ^^|ch .vjy.MR4.^?.3j°•3, 200 53 W^T^T fN^sn^r ^lf^^cT ..-^ 4-7-20W ^ratefrrw^rr'^'fg^ ^TRK ^3Tf^T3TI^T Shri P. P. Sahu, counset for ifie petitioner. Shri Ali Asgar, counsel for r^spondents No.7 to 11. None for olher respwdentsl Heard on 1.A. Nos.5475/200§and 2948/2008. For the reosons mentione^l tn tihe c^piications, the same are aUcwwd, Documents are taken on r^cord. I hme heard Shri P.P. Sd'iuj teamed counsel for the petHionep and Shri Ati Asgar, counset for res||onctents No,7 to It @n nwrit of 1+ie petition. By this petition the pe'tjitionep has questioned the tegality, propriety and correctness of tt leamed 2nd Civil Judge, Class-I, E petitioner herein under Seetion \e orcter cbted 3-11-2000 passed by [jb^»uron an opplicatjon moved by the 65 ®fttie Evidence Act OT Civit Suit No.llO-A/2000 (FekanlaJ V. Smt. ^haNtidas and others). Brief facts, necessary fc[r the di^osal ef this writ petition. (eading to filin9 of this writ pet(1)ion are 1+iat the petitianer hepein filed a dvil suit bearing No.ttO-A/200|0 which 13 pending before the 2nd Civil Judge, Class-I, Bilaspur for sp^sific performanaE of '(tie eontract. Aftcr fiting of the written statewent ^nd fnxmh9 of issu^, llw naat^er was fixed for evidence of the pe-^itioner hensin. An opplicatton ander y ^S^SssaSK^K.ai^ait XI-HC-22 *<I^^ITsh+<|ch 3^T ^I^Krl^, ^TO^^ M^ll^y 311^1^58% ^ 200 54 f^[' 3TI^T^T f^TT^^TT^T ^itcp^f^r -^f ^n^T^<[T^K^f?cf wlas beeh tinlie ISection 65 of tha Bvidence Act Itherein that th®said suit has |agreement to sale dated 27-6-84 jfiled along with the plaint. He Iwith the intention that the same Irelevant tinie that is at the [meantime. defendant Shiv Smgh |durin9 makin9 preparation for adcilLJc Ito sate was lost and that could Iplaintiff be allwwed to adduce execution of the document dated the said application was filed by therein that 1+ie plaintiff, orfio is therefore, he is prosecutin9 the facts of the case, as ajch knowtedj^. Reply of th®applicatjon counset for the parties, the Irial petittoner vide impugned order the affidavit of the plaintiff application and the document dat4d ayerm^nts <has chl^Id41-l ^l^KrlT^te^t^^K ^3T^T3TI^T filed by the petttioner mentioning ftted on 1+ie bosis of un-re9istered <|ind Xerox copy of the lam®has been 1+te original document with hiin («NI b»fited befor®the 0>urt <xt the of adducin9 of evidencB. In the fMed a Aiit in 1+ie Reve^iue Court and 3lLJcin9 the evidence, the <aiel agpeement |not be traced @ut. Tlierefore, th® secondary evidence in re^ect of ?7-6-t984. An affidayit in support- of 6|endlal, son of the plaintiff maTftioning fjather, is hecrt patient and sick parson suit, ad Aich he is aware about the of the appljaxtion are tru®to his cSvil fited anll after heapjn9 leamed Court rejectedthe cpplication of 1+ie da|'ed 3-11-2(X)0 inentioning therein that not been fited in aipport of 1+»e 27-6-1984 is un-re9isrtered which is r) hbs XI-HC-22 3^T ^II^Krl^, ^Tfl^i^ f^IRTy 3T7^W (^(^1 55 ^M^tTff>^lch ^ 200 ^^' 3TI^T^T f^TT^^TT^T ^:lt^'^f??f / 3T^T5^<ffW^?cf -3- cbi^I<rt41'i ^i^<nT^:tel:^'<f^«i< ^^Tf^T3TI^T not admissible in eyidence ond tljiere te ovenvriting on the year of the document, therefore, permission ^annot be 9ranted. Learned counsel for thc affidwit of son of the ptointiff the affidavit itself that the pl4 patient was not d>le to come to Ipetitioner submrtted -that as ^ir as |s concerr^d, it ha^ been mentioned in lintiff b&ing an old p®r«>nond heart |rtie Ceurt and son of the plainllff who has filed the affidayit was r^gutarly boki»9 after ^w plaintiff. therefore, affidavit in aipport of^ plaintiff. He further submitted| the appliaitien was filed by son sf the Ihat other grtxind raised by the trial Court thcrt year of the docume4t has been forged, the same can be looked into by the trial Courl" at 1^he time of eviGlence anil fhat jydgment and respondents are entitled to r^jse that groynd widl that can be looted on merM- after allowin91+ie parti&^ to adGluce 'H'ie evidence. As far as third 9round on i|»htichthe a{^»li<satienwas rejected thcrt- the document in question is url-registcred, leamed counset for the petitioner submitted that undter the bw the a9reement to sale is not required to be computsorily re^istered, -riierefore, -t+ie petitton be allowed cmd impugned order be set-aside. On the other hond, tearr^d counsel f@r respondents No.F to 11 submitted that in 1+ie first instoujtee, Kie applkxrtion was filed at a very bebted stage omd year of exe|cutton of Ihe document prima facie i^) ^ariAS. ^•S^SiSS.K.. XI-HC-22 ^l^€yfTtf)^lcb 3^ET <^NI<n^, ^NPT^^ f^TRTy [^T<^^ ^ 200 5-6 Rl^ 3TI^?T^H' RRTOW^T ^ra'^rf^T |NNrt^ ^ppears to be forged that instead ify overwrjting over -the word *2'. ^ecomes aispicious, therefore, thej ^roved by the seeonAxry evidence, Having heard leamed coun^l rlecord. In this regard,clauses<(b)<|nd lct are relewnt which envisage th^it iontents of the oriainal have ttie person aaainst whom it is pk'oved or bv his reBrttsentative &i 3n^T^<Trw:^i^T _ |>f 1982, 1984 has been inteppolated In the cirGumstances, *h®document document connot be allowed to b® been loroved t^ be admitted in writina by risjnQ from h is owi default or neottct, eroduce it in reawnabte tiine/ In -riie li9ht of above ^ya\ osition, tke petitioner herein in (wi n 27-6-84 defendant No.l binesl dvonce executed the document roperty in consideration of Rs. •ossession to the petitioner in >feiesh Chandra in pre^nce of the ionded over the same to the peaceful possession of the land. tol<4" petit^or^r <=t)i^T^41Ti w^ff ^* te^" <^^i< ^^rf^T3TT^T for the parties/I have perused 1+ie (c) of Sesction 65 of the Evidence Wien the existwi^, conditton or rter^sf; and 'when the orjainal hasl been destroved or lost. or when the offerjno evidence of its cont^nts carBiot. for any other* reason not i)osition. if we look into 1+ie factual ^a-2 of the plaint hos mentioned that Ghandra cefter taking Rs.SOO/- in ^egardmg the sale of the disputed ^SOO/- cnd dso handed over ^he thereof. On that date defendant ^jtnesses execytBd the document and and sinee then 1iie petitioner is jjn para-2 of Ihe writt'en dtoEtensent it fe^) XI-HC-22 ^l^^ll ^HIch 7^[ ^Nid^, ^rftWT^, f^TRTy 311^1 M?t€h ^ 200 57 Rl^ 3TI^T^)T R^i<=h3TI^T ^lt^^T 3TI^T5^cn'^K^f?cr •^ is mentioned that it is incorreet t^ ^iy that on 27-6-84 <xny agra^ment to sexle in con^deration of Rs.55p0/- wa< executed h ftxvour of the petitioner after advancing fts.500^ tenant. In para-14 of the additiG|nal written statament it has ^Lirther been mentloned that as the defen|dlant No.l i.e. Ohesh Chandra was not in need of any house becouse he | phce, therefore, construction over| <=bi^Id41^ Hm^JY^te^l'^^K ^3Tf^T3TI^?T The petttioner is in possesslon ®sa had constnjcted the house at o1+ier the land was agreed t©be solct to the petitioner Jn consideration of Rs.^500/-, J^e agreement wxs exeaited on 27-6-82 and Rs.500/- was giv^n to the def®idantNo.l o®advortce money ond it was agreed that th^ December 1982. Th®defenctoit N^ Therefore, in view of the s sale deed will be executed by 31st ).t had no rlght to transfer the fand. above pksodmqd of tlw porties, the petjtioner has mentioned in the pl^int thot the agreement was executed on 27-6-84 whereos, the defendarlt Na,l has odmitted execotion of the document but it was stated that ^h®agreement wos executed on 27-6- 82, therefore, Jt beeomes a wffHe^Qf e^idCTice whteh can be decided by th& trial Court after allowing the ( was executed betvwen the parties ^arties to adtboe the evjdenee on this point. Ifi «icha situation, it is a^lmhled position that sonw documcnt wbether it vws exeeutad In the year 1982 or 1984. The said question ^os to be decided by 'rir trial €out*t. The petitioner has filed an applicc|tion -rtiat the sakl original agreement [^^fe^) rsis~^- XI-HC-22 +11^^1 »>*<icn 3^T ^Ni<v1^, ^Tfl^^Ko^ f^Trey 311^1 ^51^ ^.....................^ ^QQ f^[' 3TI^T^)T f^TW3T1^T ^ira'^f^r 3Tr^T5^cITW^cT -^- petitioner has filed the affidavilj cbl^?<n41'1 ^I^^T^fe^if^^K ^^rf^'R'3TT^?1 to sale has be6n lost and in spite ^>f best effort he hces not been able to trace out the same and in suj^port- of the cpplicatjon son of -Hie and. ttwrefore. ther®was no reason before the trial Courtand this Co<irt to disbelieve the affidavitas ttiere js nothing on record which makes ^he said affldavit doubtftil, therefwe, in my opjnion, the requireme^ts o the Indion Evictence Act, 1872 ^re satisfied and in sudi a situation, leamed trial Court ou^it to h< secondary evidence with regard to dauscs (b) anct (c) of Section 68 of ive allowed ihe plaintiff to ddckice execution of agreemCTit to sale @f the disputed property. As far as question of inter^olation of th®fiqwe '2' to *4' i.e. year 1982 to i984 is concemed, it i^ again a matter of evidence and the respondents herein are entitted|to raise that objection, <Klduce the evidence and cross-examine the pl]aintiff OBid witnesses on that point and v^iile clecidin9 the questbn of exej triat C@urt can pass the order on -t^®objeetion. As foar os registration is cutten and existence ®fdocument, the icemed, it is Giclmitted (wsition that the a9reement to sate is not requi^ed to be eompulsorily re^istered. As has been held by the tlon'bte Apex Court- in 1+ie matfrer of Nawab Singh v. Inderjlt Kauri reported in AIR 1999 SUPREttE COIWT 1668, in para-3, tiiat *.....4...."*yeaw oflfie ^Won fftat Ifie tfiaf ^) 58 XI-HC-22 Hm^tT^wrei 3^ET rqNldq, ^TTl^fl^l^ f^ITHy 31(^1 ^51^ ^ 200 59 f^s 3T1^T^)T R^i<=h3Ti^T ^)^ich^f^c1 ^^ 3TT^T5^T^K^f?cf ^T The prayet9 h^us becn ^ight ff^l \Cwirt vws nat Juslified in reje^tmg \ coH€hfvyeyiden<^. that -tfte eopy of ifie rent note WQS of d^ubtful veracity. Jhe that apinion wilffatft afforefing th^ js»oe>fffl&»yeyicknce. The cf)pelkw\ \be in pos^ssion of ihe responden\ 1ef Section 6S af the Indievi Eviderifse Act, In view of the above, I an| iinpu9ned order passed by the tria| ISection 65 of the Indian Bvidencel laside. In the result, tte writ peti| directed to allow the petitioner prayed for and to proceed with th^ jsuit is pending since 1987, therejfore, |expedite the trial amd try to di^)o^e In view of this ordert |Nos.2125/2005,493S/2005 slond |disposed of Parties are entitled <=bi<M?<n41ri ^i^<rtT^:teT:^t<^i^i< ^3Tf^T3n^rr ^e ^rayer fi^r pmcfuctfon o^ rejectsd mamty on ihe gmund to be produced by ihe ep^lkxnt Couvt was not justified m f^rm^g cfipeHant an epp^rltimty ef Q^ldacmg heis af^ysd ifw oriyiwt reyit no^te to |k The case vwas eowred ky dause (a) \:eAct,1972! of t+»eon^dtered opinton that thc [ Court te contrflry to the pro^sions of Aet <md 1+i®soane is Ikxble to be set ifrion is altowed and the trid Gourt is adduee the secondary ©^idenceas ^ suit In accor^lance with hw. As 1+ie s, the trial Court is dir&cted to of the cas»at the earliest^ M.(W)P.N®.1S82^003 anct I.A. for cert^fied copy of this order. ^,^\ Sd/- L.C. Bhadoo Judge ./