IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO.148 of 2011 Judgment reserved on: 31.10.2011 Date of decision: 01.11.2011. Amrik Singh @ Amrik Jaijee and another ….Petitioners Versus Smt.Surinder Jit Kaur and another ….Respondents Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 No For the petitioners: Mr.P.S. Goverdhan, Advocate. For the respondents: Mr.Venu Gopal Jauhar with Mr.Inderjit Singh Narwal, Advocate. _________________________________________________ Deepak Gupta, J. 1. By means of this petition filed under Article 227 of the Constitution of India, the petitioners (hereinafter referred to as the plaintiffs), have challenged the order dated 18.3.2011 passed by the Civil Judge (Junior Division), Solan whereby he rejected the application filed by the plaintiffs under Section 65 of the Indian Evidence Act read with Section 151 CPC seeking permission of the Court to prove the documents Mark P, Q, S, T, U, V, X, Y, Z, Z1, Z2 and Z3 by leading secondary evidence. 2. Briefly stated, the facts of the case are that the petitioner Amrik Singh filed a suit against his 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. 2 paternal Aunts Surinderjit Kaur and Bhupinder Kaur claiming that he be declared to be owner in possession of the suit property and that the revenue entries showing late Smt.Mohinder Kaur and the defendants as owners in possession of the suit property are illegal and inoperative. Petitioner No.2 Smt.Ajit Jaijee, mother of the plaintiff, was initially impleaded as proforma defendant but later on transposed as the plaintiff. The suit was contested by the defendants and according to them Sardar Gurjit Singh, predecessor-in-interest of the plaintiffs was never shown as owner of the suit property and after the death of Sh.Hem Singh, the common ancestor, the land had been allotted to Smt.Mohinder Kaur, and thereafter the suit land came to her daughters. 3. The suit was filed in the year 2002 and issues were framed in the year 2006 and additional issues were framed in the year 2009. The plaintiffs were given number of opportunities to lead evidence and finally the evidence of the plaintiffs was closed by an order of the Court on 9th October, 2010. Thereafter, the case was fixed for defendants’ evidence and at that stage the plaintiffs filed an application under Section 65 of 3 the Indian Evidence Act read with Section 151 CPC for permission to lead secondary evidence to prove the documents. 4. At the outset, I may state that the documents in question are all documents purported to have been issued on behalf of the National Seeds Corporation Ltd. Some of these documents are receipts and some are store requisition forms. The plaintiffs had summoned a witness from the office of the National Seeds Corporation Ltd. to produce the record to prove/corroborate the documents but the witness stated that the documents were very old and the record had been destroyed. The plaintiffs thereafter moved this application. The learned trial Court rejected the same on the ground that the plaintiffs had been given a large number of opportunities to lead evidence and therefore could not be given another opportunity to lead the evidence and therefore rejected the application. 5. At the outset, I may state that it appears that the application is totally misconceived in so far as certain documents are concerned. Mark P, Q and X are original receipts purported to have been issued on behalf of the National Seeds Corporation. They are, therefore, primary 4 evidence and not secondary evidence. They had to be got proved by the plaintiffs. Similarly, Mark U & V are the original invoices/bills. They are primary evidence. Mark S, T and Z are Carbon Copies of store requisition forms and Mark Z1 is a carbon copy of the schedule of deductions. Mark Z2 is the inspection delivery and payment note but both these documents bear signatures in original and therefore they are, in a sense, original documents. Mark Z3 is a letter in original addressed to Sardar Gurjit Singh on behalf of the National Seeds Corporation by its Accounts Officer enclosing therewith a cheque. 6. In my view, the application was totally misplaced in respect of the documents which are original. As far as carbon copies are concerned those could not be got produced at this stage. It appears that the plaintiffs by proving these documents wanted to show that their predecessor in interest Sardar Gurjit Singh was purchasing seeds from the Seeds Corporation for the cultivation of land in Solan. What is the effect of these documents on the main suit is something to be decided by the learned trial Court. Though, the application under Section 65 may be mis-conceived inasmuch as most of the 5 documents, as discussed above, are original documents and secondary evidence cannot be led to prove them, I am of the opinion that since petitioners want to show that their predecessor in interest was in occupation of the suit property, they may be given one opportunity to prove the same. 7. The learned trial Court was in a sense justified in holding that the plaintiffs had been given number of opportunities to lead evidence. I have seen the record and there is no manner of doubt that the plaintiffs have been given number of opportunities to lead evidence. The plaintiffs have delayed the suit to some extent but on a perusal of the record I find that on a large number of occasions the suit got delayed because the Presiding Officer was on leave and the plaintiffs alone cannot be held responsible for the delay in the suit. In any event the defendants can be compensated by payment of costs. 8. As far as carbon copies of documents i.e. Mark S&T are concerned, the secondary evidence can be led to prove these documents. As far as Mark Z1 and Z2 are concerned, as observed above, a portion of these documents has to be considered the original because they bear original signatures 6 and should be treated as primary evidence even though the entries are filled in by carbon copy. 9. The parties, through their counsel, are directed to appear before the learned trial Court on 21st November, 2011. Since, the case is an old one, the plaintiffs will not be given more than two opportunities to prove these documents. It shall be the responsibility of the plaintiffs to file the names of the witnesses through whom they want to prove the aforesaid documents on or before the next date fixed before the learned Trial Court. Thereafter, the learned trial Court shall give the plaintiffs, at the most two opportunities to produce their witnesses. Though the plaintiffs may take the help of the Court in issuing summons it shall be the responsibility of the plaintiffs to serve and produce their witnesses. In case they fail to produce their witnesses no further opportunity shall be granted. 10. This order is passed subject to costs of Rs.10,000/-to be paid by the plaintiffs to the defendants on or before the next date. In case costs are not paid or list of witnesses is not filed by 21st November, 2011 then the present petition shall be deemed to have been dismissed. In case, the costs are paid and list of witnesses is filed, 7 the learned trial Court shall fix the first date for recording evidence in the month of December, 2011 and the second date, if required, in the month of January, 2012. It is made clear that the plaintiffs shall not be given any further opportunity. It is also made clear that the matter shall not be adjourned on the basis of any application filed by the plaintiffs. Since the case is an old one the learned trial Court is directed to dispose of the same at the earliest and in any event not later than 31st July, 2012. 11. The petition is disposed of in the aforesaid terms. November 1, 2011 (Deepak Gupta) PV Judge