C.R.No. 7157 of 2009 (O&M) 1 In the High Court for the States of Punjab and Haryana at Chandigarh. Decided on March 26,2010. Satyajeet Singh Bedi -- Petitioner vs. Arun Juneja and others --Respondents. CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.Puneet Bali,Advocate, for the petitioner Mr.Gaurav Kathuria,Advocate,for respondent Nos. 1 and 2 Mr.Manish Bansal,Advocate,.for respondent No.3. Rakesh Kumar Jain, J: This order shall dispose of two Civil Revisions bearing Civil Revision No. 7157 of 2009 (Satyajeet Singh Bedi Vs. Arun Juneja and others and Civil Revision No.7156 of 2009 (Satyajeet Singh Bedi Vs. Arun Juneja and others). However, facts are extracted from Civil Revision C.R.No. 7157 of 2009 (O&M) 2 No.7157 of 2009. A few skeletal facts need to be noticed in order to appreciate the dispute between the parties. The petitioner entered into an agreement to sell with respondent No.1.on 2.6.2004 in respect of plot No.357, situated at Sector 15, Faridabad measuring 400 square yards with 10% construction for a sum of Rs.28,50,000/-, out of which Rs.50,000/- in cash was paid by the petitioner to respondent No.1. as part payment. A sum of Rs.5,00,000/- was paid on 21.8.2004 to respondent No.2. against a receipt and possession was taken. Remaining sum was agreed to be paid within 15 days after the date of permission received from respondent No.3.(HUDA). When the petitioner approached respondent No.3 for the transfer of the plot in question, he came to know that permission has already been granted in the name of respondent No.2. and at that time, for the first time, the petitioner came to know that respondent No.1 has already sold the said plot to some one else. The petitioner filed a suit for permanent injunction in the Court of Civil Judge (Senior Division) Faridabad on 4.11.2004 in order to restrain respondent Nos.1 and 2 from interfering in his peaceful possession and to restrain respondent No.3. from granting permission to sell in the name of any other person except the petitioner. Later on, the suit for permanent injunction was amended into a suit for specific performance by way of an application which was allowed on 23.2.2009. During the pendency of the suit, an application filed under Order 39 Rules 1 and 2 of Code of Civil Procedure, 1908 (for short,'CPC') was partly allowed, as a result of which respondent Nos.1 and 2 were restrained from alienating the suit property. C.R.No. 7157 of 2009 (O&M) 3 An appeal filed by the respondents against the impugned order dated 19.12.2005 was dismissed by Addl. District Judge, Faridabad on 17.10.2006. Issues were framed on 29.11.2006 and the petitioner got the first opportunity to lead his evidence on 12.9.2008. The petitioner then filed an application to lead secondary evidence to prove the agreement to sell dated 02.6.2004 and receipt dated 21.8.2004 on the ground that the original agreement and receipt have been lost. The application was contested by the respondents, but it was allowed by the trial Court vide order dated 03.8.2007. The respondents challenged the order dated 03.8.2007 by way of Civil Revision No..33 of 2008, which was disposed of by this Court on 08.1.2008 observing that “needless to say that secondary evidence cannot be considered without establishing the existence and the loss of the documents, therefore, before evaluating the secondary evidence, the learned trial Court, shall keep in mind the aforesaid principles of law”. The directions given in Civil Revision No.33 of 2008 were followed by the trial Court and the petitioner was asked to lead evidence to prove the loss of agreement to sell and the receipt. In this regard, the petitioner referred to a copy of D.D.R dated 08.10.2004 registered at Police Station, Sector 15, Faridabad, regarding loss of agreement to sell and receipt. The petitioner was in possession of the photostat copy of the documents and asked for the official record from the Police Station concerned. But the original record was not produced by the police department on the ground that the same has been destroyed. However, two witnesses from the concerned Police Station, namely Constable Vijender Singh (PW-6) and Ajaib Singh (PW-8) were examined. Ajaib Singh (PW- C.R.No. 7157 of 2009 (O&M) 4 8) has admitted that the said DDR was written by him and was signed by him at the time when he was in the police force. This witness was examined when he had already retired from the police department. The petitioner then filed an application dated 31.8.2009 for marking DDR dated 08.10.2004, about the loss of document, as exhibit which was disposed of on the same day by the trial Court stating that mode of proof is not properly adopted, therefore, the document cannot be exhibited. The petitioner then filed an application for allowing secondary evidence but the same was dismissed vide the impugned order dated 1.10.2009 on the ground that earlier application was dismissed on 31.8.2009, therefore, the same cannot be allowed. In the second case i.e Civil Revision 7156 of 2009, the petitioner has challenged the order dated 16.10.2009 whereby the trial Court has closed his evidence on the ground that vide separate order, application for secondary evidence has already been dismissed. Learned counsel for the petitioner has vehemently argued that learned Court below has committed a palpable error of law in passing the impugned orders Annexures P-11 and P-13 in exercise of its jurisdiction because initial application filed for leading secondary evidence was allowed by the trial Court but the same was set aside by this Court on the ground that the petitioner has to first prove the existence of the evidence which is sought to be led as secondary evidence before the same could be allowed by the trial Court. The evidence led by the petitioner was to bring on record copy of D.D.R. dated 08.10.2004 but the same could not be brought on record as the original was in possession of the police authority who had alleged that the same has been destroyed after three years. However, the C.R.No. 7157 of 2009 (O&M) 5 petitioner has been able to prove by leading evidence that D.D.R. was registered by him but the trial court while passing the impugned orders Annexure P-13 dated 31.8.2009 has erred in holding that the petitioner was duty bound to prove the loss of original documents. It is submitted by learned counsel for the petitioner that the petitioner has proved loss of original documents as it has come in evidence that the original was not in his possession and was a public document in possession of the police authority of Police Station, Sector 15, Faridabad which had been destroyed in accordance with the rules/instructions after a period of three years. It is further submitted that the Court below should have taken into consideration the statements of the witnesses and other evidence brought on record by the petitioner while passing the impugned order whereas, in respect of C.R.No. 7156 of 2009, it is submitted that if the present application is allowed and the petitioner is allowed to lead secondary evidence, that order would have to be necessarily set aside . Therefore, it is submitted that success of Civil Revision No. 7156 of 2009 very much depends upon the success of Civil Revision no.7157 of 2009. In reply, learned counsel for the respondents has argued with equal vehemence that D.D.R. is a procured document because the petitioner had the knowledge that the such documents are destroyed by the police after a period of three years and the original would not be available, therefore, a concerted effort has been made by the petitioner to forge the evidence to prove the loss of original documents in order to lead secondary evidence by way of photo copy of an agreement to sell and receipt. In respect of Civil Revision No.7156 of 2009, it is submitted that the evidence has been rightly closed by the Court below as the C.R.No. 7157 of 2009 (O&M) 6 petitioner has been granted last opportunity, but he failed to produce his witnesses. I have heard learned counsel for the parties and perused the record with their able assistance. In the present case, the dispute is to prove the agreement to sell and amount of part consideration received by the vendor from the plaintiff/petitioner. Undoubtedly, the trial Court had allowed the petitioner to lead secondary evidence on the pretext that he had lost the original documents during the process of shifting his house No. 338 to 245 Sector 15, Faridabad. When the application was initially allowed, the trial court had observed that the petitioner is entitled to lead secondary evidence as it would not cause any pre-judice to the defendants as the opportunity to lead evidence would still be there with the defendants. It was in the revision, the High Court had observed that before allowing the application for secondary evidence, the trial Court should have considered the existence and loss of alleged documents. Thus, in order to prove loss, the petitioner had led evidence to the effect that the loss was brought to the notice of the police authorities as far back as on 08.10.2004 by registration of Rapat No.4 and asked the police of Sector 15, Faridabad to produce the original of the said Rapat but unfortunately the said Rapat was not produced by the police on the ground that the same has been destroyed. The question therefore before the trial Court was as to whether the petitioner had been successful in proving existence and loss of the alleged documents. In fact, learned trial Court had dismissed the application for secondary evidence vide order dated 1.10.2009 only on the ground that the application for exhibiting the document (D.D.R.) was dismissed on 31.8.2009. In my C.R.No. 7157 of 2009 (O&M) 7 opinion, the petitioner has proved the loss of original documents by virtue of alleged evidence of PW-6 and PW8 aforesaid, who had stated that the document (Ex.DDR) was written and the original is destroyed after three years. The learned trial Court while passing the order dated 31.8.2009 had held that there is a provision of proving public document, but the plaintiff is not following the same. In this regard, Section 65 (c) of the Evidence Act, 1872 is required to be referred to which provides that secondary evidence may be given of the existence, condition or contents of a document when the original has been destroyed or lost, or when the party offering evidence of its contents, cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time. In the present case, the original was in possession of Police Station, Sector 15, Faridabad, which is stated to have been destroyed for which the petitioner cannot be attributed any fault. In this regard, reference could be made to the decision of Supreme Court in the case of MARWARI KUMHAR AND OTHERS VS. BHAGWANPURI GURU GANESHPURI AND ANOTHER (2006) 6 Supreme Court Cases 735. Thus, from pre-ponderence of evidence, it is apparent that the original document (DDR) which has been sought to be produced for the purpose of existence of loss of documents, namely agreement and receipt were destroyed and as such, the petitioner is not in a position to produce the original on record and it satisfies that the requirements of law for the purpose of allowing the application for secondary evidence. In view of the above discussion, the present Civil Revision No. 7157 of 2009 is allowed and the impugned orders Annexure P-11 and P-13 C.R.No. 7157 of 2009 (O&M) 8 dated 31.8.2009 and 1.10.2009 are hereby set aside. Consequently, Civil Revision No. 7156 of 2009 is also allowed and the impugned order dated 16.10.2009 is set aside, however, without any order as to costs. March 26,2010 (Rakesh Kumar Jain) RR Judge