Delhi High Court
Mangat Ram vs Ashok Kumar Sharma on 22 March, 2010
Author: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: March 05, 2010
Date of Order: March 22, 2010
+ CM(M) 918/2009
% 22.03.2010
Mangat Ram ...Petitioner
Through: Mr. Arun Birbal, Advocate
Versus
Ashok Kumar Sharma ...Respondent
Through: Mr. Anshuman Pandey, Advocate
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment? No.
2. To be referred to the reporter or not? Yes.
3. Whether judgment should be reported in Digest? Yes.
JUDGMENT
1. By this petition under Article 227 of the Constitution of India, the
petitioner has assailed an order dated 23rd April, 2009 whereby the petitioner
was not allowed to lead secondary evidence to prove the originals of
documents which were in the nature of power of attorney and agreement to
sell.
2. It is submitted by counsel for the petitioner that the respondent was his
son. The petitioner was owner of the property in question and has been
residing in the property. The property was ancestral property. The petitioner
allowed respondent, his eldest son, to reside with him while rest of the family
was residing in another house. In the year 2004, the petitioner lost his wife
and became dependent on the respondent for his daily needs. The
respondent and his second wife started putting pressure on him to sell the
property and give money to them so that the respondent could buy a plot in
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Delhi. The petitioner refused to oblige. However, when petitioner found that
respondent was trying to sell his property, he got published a notice in
newspaper that he was the owner of the property and the people should
desist from purchasing the property. He also filed the suit in question against
his son seeking permanent injunction restraining his son from selling and
alienating the property. The original documents of the property which were in
his custody earlier, fell in hands of the respondent during his living with him.
The petitioner wanted to prove his ownership of the property by virtue of
secondary evidence. The petitioner served a notice on the respondent to
produce the original documents relating to the title of the property. He moved
the application under Section 63 of Evidence Act for permission to place on
record the photocopies of the documents and to prove the documents by
secondary evidence, which the trial court dismissed by impugned order.
3. A perusal of the order of trial court would show that the trial court
denied permission to lead secondary evidence on the ground that the
defendant in his reply to the notice had refused that he was in possession of
the documents of title showing that the petitioner was the owner. The trial
court observed that the plaintiff has prima facie failed to prove the averments
made in the application and failed to prove the existence of the original
documents, which could entitle him to lead secondary evidence.
4. It is argued by counsel for the petitioner that trial court wrongly
observed in its order that the plaintiff failed to disclose in the plaint that the
original documents were in possession of defendant whereas the plaintiff, in
his plaint pleaded that the original documents of the property were in
possession of the defendant. In the written statement, defendant denied
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these averments in paras 8 and 9. In replication, the plaintiff re-asserted that
the original documents were with the defendant. A perusal of record would
show that these averments were there in the pleadings.
5. Secondary evidence can be led in the Court under Section 65 of the
Indian Evidence Act when the original is shown in power and possession of
the person against whom the document is sought to be proved. In the present
case, defendant is the son of the petitioner and had been living with the
petitioner in the same house and the petitioner after death of his wife has
become dependent upon his son. The petitioner's averment that the original
documents were in possession of the defendant was a plausible averment.
The trial court in this case did not consider Section 65A of the Indian Evidence
Act and did not exercise its jurisdiction that secondary evidence can be
allowed in those cases where the originals appears to be in possession of
power of the opposite party against whom the document is sought to be
proved. Bare denial by the opposite party that it did not have the original
document would not disentitle the plaintiff/ petitioner to prove his title by way
of secondary evidence. The secondary evidence can be allowed if the
documents appear to be in possession of the opposite party. It is a clear cut
case where the Court should have considered that there was every likelihood
of the petitioner's averments being correct and the petitioner, therefore, has
a right to prove his ownership by way of secondary evidence. The evidentiary
value and weight of the evidence led by the petitioner as secondary evidence
would have to be decided by the trial Court after the entire evidence was
over.
6. In the result, the present petition is allowed and the order of learned
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trial court is hereby set aside. Petitioner/ plaintiff would be permitted by the
trial court to lead secondary evidence qua his title over the suit property.
7. The petition stands disposed of with above directions.
March 22, 2010 SHIV NARAYAN DHINGRA J.
rd
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