C.R. No. 696 of 2006 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH C.R. No. 696 of 2006 Date of Decision : 7.8.2009 Raja Ram .......... Petitioner Versus M/s Greater Delhi Planner Pvt. Ltd. ...... Respondent CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Lokesh Sinhal, Advocate for the appellant. Kulbhushan Sharma, Advocate for the respondent. **** VINOD K. SHARMA, J. (ORAL) The petitioner has invoked the jurisdiction of this Court under Article 227 of the Constitution of India to challenge the order dated 20.1.2006, passed by the learned Addl. Civil Judge ( Sr. Divn.), Faridabad, whereby application filed by the respondent for leading secondary evidence has been allowed. The defendant / respondent filed an application under Sections 65/66 of the Evidence Act to lead secondary evidence, on the averments, that the defendant had summoned Rakesh son of Jharia resident of village Sarai Khawaja along with receipt dated 5.6.1961 regarding payment of Rs. 2000/-to Shri Ramji Lal by his late father Shri Jharia. Sh. Rakesh was said to be in possession of the receipt dated 5.6.1961. After the death of his C.R. No. 696 of 2006 2 father, he deliberately in collusion with the plaintiff failed to produce it in Court. The receipt was said to be necessary to prove payment of the mortgage money. The defendants claimed themselves to be in possession of true photostat copy of the receipt. It was prayed, that they be permitted to lead secondary evidence. The application was contested, wherein it was denied, that the receipt dated 5.6.1961 was in possession of Rakesh. It was pleaded, that the defendant / respondent never claimed existence of such receipt in possession of Rakesh Kumar. The allegations were said to be false, and it was therefore prayed that the application be dismissed. The application was further contested, that the receipt did not form part of the pleadings nor the photocopy was placed on record. The learned Court below without going into the question whether the secondary evidence could be allowed or whether loss was proved or not, allowed the application by observing as under :- “6.Since the receipt will elucidate and highlight the facts in order to prove the sequence of facts which have occurred between Jharia and Ramji Lal qua the payment of the mortgaged money regarding property in dispute. Therefore, I am of the view that for proper adjudication of the case photo copy receipt needs to be exhibited by leading secondary evidence qua receipt dated 5.6.1961 is hereby allowed. Case is adjourned to 7.2.2006 for defendant's evidence.” The impugned order cannot be sustained. In order to succeed in application for secondary evidence it was necessary for the applicant to C.R. No. 696 of 2006 3 prove its existence and loss, in absence of these two ingredients the application for secondary evidence could not have been allowed. There is absolutely no reason given for allowing the application for secondary evidence, furthermore the law cited by the learned counsel for the petitioner was not taken note of. The revision is allowed, and the impugned order is set aside. The case is remanded back to the learned trial Court for deciding the application for leading secondary evidence in accordance with law by passing a speaking order. 7.8.2009 ( VINOD K. SHARMA ) 'sp' JUDGE