Punjab-Haryana High Court
Hazara Singh vs Sukhwinder Kaur And Others on 13 December, 2023
Neutral Citation No:=2023:PHHC:160664
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CR-4123 of 2019 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CR-4123 of 2019 (O&M)
Reserved on: 14.11.2023
Pronounced on: 13.12.2023
Hazara Singh
......Petitioner
Versus
Sukhwinder Kaur and others
......Respondents
CORAM: HON'BLE MR. JUSTICE NAMIT KUMAR
Argued by: Mr. Sachin Sharma, Advocate,
for the petitioner.
Mr. K.S. Sidhu, Sr. Advocate, with
Mr. G.S. Benipal, Advocate,
Mr. Praagbir S. Dhindsa, Advocate, and
Mr. Kartik Bansal, Advocate,
for respondents No.2 to 4.
NAMIT KUMAR, J.
1. This revision petition has been filed under Article 227 of
the Constitution of India read with Section 151 CPC for setting aside
the order dated 18.05.2019 (Annexure P-1) passed by the Court of
learned Civil Judge (Junior Division), Dera Bassi, whereby application
filed by the petitioner to prove agreement to sell dated 15.03.2004 by
way of leading secondary evidence, has been dismissed.
2. Brief facts leading to the filing of the present revision
petition are that petitioner-plaintiff filed a suit for possession by way of
specific performance on the basis of written agreement of sale dated
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15.03.2004 as well as agreement of sale of full and final payment dated
21.06.2004, pleading therein that respondent No.1 had entered into a
written agreement to sale dated 15.03.2004 with the petitioner-plaintiff
regarding land measuring 18 biswas comprised in Khewat/Khata
No.181/356 Khasra No.836/1 (0-18) situated within the revenue estate
of village Rampur Sainia, Tehsil Dera Bassi, District S.A.S. Nagar
(Mohali) for a total consideration of Rs.3 lacs and an amount of
Rs.50,000/- was paid to respondent-defendant No.1 at the time of
entering into abovesaid agreement and remaining amount of sale
consideration was also paid to defendant No.1 subsequently vide
different writings as executed on the backside of the written agreement
of sale dated 15.03.2004 and the said payment of Rs.3 lacs was made
by the petitioner to respondent No.1 through cheques duly issued by
him out of his account No.08311100000514 maintained by the
petitioner in the Punjab and Sind Bank Branch, Dera Bassi. It is further
pleaded that subsequently, on demand raised by respondent No.1, in
addition to Rs.3 lacs already paid, petitioner paid Rs.1 lac more to
respondent No.1 and agreement of sale of full and final payment was
executed on 21.06.2004 mentioning therein that respondent-defendant
No.1 had received the total sale consideration amounting to Rs.4 lacs
from the petitioner-plaintiff and nothing is due towards him and
petitioner can get the sale deed executed and registered in his favour at
any point of time; further for declaration to the effect that sale deed
bearing Vasika No.6826 dated 26.11.2008 executed by respondent-
defendant No.3 being the alleged GPA of respondent No.1-Sukhwinder
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Kaur in favour of respondent-defendant No.2-Sukhbir Singh qua the
suit property is illegal, null and void and is liable to be set aside being a
result of fraud played upon by the defendants in collusion with each
other upon the plaintiff. Petitioner-plaintiff also prayed for restraining
respondent No.2 from further alienating, transferring or encumbering
the suit property by way of sale, gift or mortgage etc. or in any other
manner changing the nature of the suit property by illegally and
unlawfully raising any construction in the same.
3. Learned counsel for the petitioner contended that the trial
Court has wrongly dismissed the application of the petitioner for
proving the agreement of sale dated 15.03.2004 by way of leading
secondary evidence. He further contended that original agreement of
sale is not traceable and the document is very much necessary for
adjudication of the controversy properly. He further contended that
petitioner could not file the application for leading secondary evidence
earlier due to lack of knowledge. He further contended that in case the
application of the petitioner is not allowed, he will suffer irreparable
loss and injury. In support of his contentions learned counsel placed
reliance on the judgments of this Court in Smt. Shobha Rani v. Ravi
Kumar, 1999(1) R.C.R.(Civil) 98 and Rajesh Yadav and others v.
Balbir Singh and others, 2014(5) R.C.R.(Civil) 941.
4. On the other hand, learned Senior counsel for respondents
No.2 to 4 supported the impugned order. He contended that Photostat
copy of a document cannot be received as secondary evidence. He
further contended that petitioner failed to prove as to how he procured
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the photocopy of the document in question. In support of his
contentions he placed reliance on the judgment of the Hon'ble Supreme
Court in Smt. Yashoda v. Smt. K. Shobha Rani, 2007(2) R.C.R.(Civil)
840; judgments of this Court in Mangat Ram v. Prabhu Dayal and
others, Law Finder Doc id # 2314; Major Singh and others v.
Kulwinder Kaur and others, Law Finder Doc id # 441800 and
judgment of Madhya Pradesh High Court in Haji Mohd. Islam and
another v. Asgar Ali and another, Law Finder Doc id # 123598.
5. I have heard learned counsel for the parties and perused
the record.
6. It would be relevant to reproduce Sections 63 and 65(a) of
the Evidence Act, which read as under: -
"63 : Secondary evidence - Secondary evidence means and
includes -
(1) certified copies given under the provisions hereinafter
contained;
(2) copies made from the original by mechanical
processes which in themselves ensure the accuracy of the
copy and copies compared with such copies;
(3) copies made from or compared with the original;
(4) counterparts of documents as against the parties who
did not execute them;
(5) oral accounts of the contents of a document given by
some person who has himself seen it.
65. Cases in which secondary evidence relating to
documents may be given - Secondary evidence may be
given of the existence, condition, or contents of a
document in the following cases:-
(a) When the original is shown or appears to be in the
possession or power- of the person against whom the
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document is sought to be proved or of any person out of
reach of, or not subject to, the process of the Court, or of
any person legally bound to produce it, and when, after
the notice mentioned in Section 66, such person does not
produce it."
7. In Smt. J. Yashoda's case (supra), the Hon'ble Supreme
Court has observed as under: -
"9. The rule which is the most universal, namely
that the best evidence the nature of the case will admit
shall be produced, decides this objection that rule only
means that, so long as the higher or superior evidence is
within your possession or may be reached by you, you
shall give no inferior proof in relation to it. Section
65 deals with the proof of the contents of the documents
tendered in evidence. In order to enable a party to
produce secondary evidence it is necessary for the party to
prove existence and execution of the original document.
Under Section 64, documents are to be provided by
primary evidence. Section 65, however permits secondary
evidence to be given of the existence, condition or contents
of documents under the circumstances mentioned. The
conditions laid down in the said Section must be fulfilled
before secondary evidence can be admitted. Secondary
evidence of the contents of a document cannot be admitted
without non-production of the original being first
accounted for in such a manner as to bring it within one
or other of the cases provided for in the Section. In Ashok
Dulichand v. Madahavlal Dube and Another [1975(4)
SCC 664], it was inter alia held as follows:
"After hearing the learned counsel for the parties,
we are of the opinion that the order of the High
Court in this respect calls for no interference.
According to clause (a) of Section 65 of Indian
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Evidence Act, Secondary evidence may be given of
the existence, condition or contents of a document
when the original is shown or appears to be in
possession or power of the person against whom the
document is sought to be proved or of any person
out of reach of, or not subject to, the process of the
Court of any person legally bound to produce it,
and when, after the notice mentioned in Section
66 such person does not produce it. Clauses (b) to
(g) of Section 65 specify some other contingencies
wherein secondary evidence relating to a document
may be given, but we are not concerned with those
clauses as it is the common case of the parties that
the present case is not covered by those clauses. In
order to bring his case within the purview of clause
(a) of Section 65, the appellant filed applications on
July 4, 1973, before respondent No. 1 was examined
as a witness, praying that the said respondent be
ordered to produce the original manuscript of
which, according to the appellant, he had filed
Photostat copy. Prayer was also made by the
appellant that in case respondent no. 1 denied that
the said manuscript had been written by him, the
photostat copy might be got examined from a
handwriting expert. The appellant also filed
affidavit in support of his applications. It was
however, nowhere stated in the affidavit that the
original document of which the Photostat copy had
been filed by the appellant was in the possession of
Respondent No. 1. There was also no other material
on the record to indicate the original document was
in the possession of respondent no.1. The appellant
further failed to explain as to what were the
circumstances under which the Photostat copy was
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prepared and who was in possession of the original
document at the time its photograph was taken.
Respondent No. 1 in his affidavit denied being in
possession appeared to the High Court to be not
above suspicion. In view of all the circumstances,
the High Court to be not above suspicion. In view of
all the circumstances, the High Court came to the
conclusion that no foundation had been laid by the
appellant for leading secondary evidence in the
shape of the Photostat copy. We find no infirmity in
the above order of the High Court as might justify
interference by this Court."
The admitted facts in the present case are that the original
was with one P. Srinibas Rao. Only when conditions of
Section prescribed in Section 65 are satisfied, documents
can be admitted as secondary evidence. In the instant case
clause (a) of Section 65 has not been satisfied. Therefore,
the High Court's order does not suffer from any infirmity
to warrant interference."
8. In the present case, petitioner have failed to explain as to
what were the circumstances under which the photocopy of the
document was prepared and who was in possession of the original
document at the time its photograph was taken. Moreover, defendants
had moved application on 09.03.2015 for directing the plaintiff to
produce the agreement to sell dated 15.03.2004 in original before the
Court and plaintiff had suffered the statement that the said agreement
has been lost by him. Petitioner-plaintiff has moved the present
application at a belated stage as an afterthought.
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9. No benefit of the judgments relied upon by learned
counsel for the petitioner can be given to him as the same are
distinguishable from the facts of the present case.
10. The impugned order passed by the trial Court is well-
reasoned and does not suffer from any illegality or infirmity and is not
having any element of arbitrariness or perversity. The revisional
jurisdiction of this Court is quite limited and considering the facts and
circumstances of the case, there is no reason to interfere with the
impugned order by way of exercising the revisional jurisdiction.
11. Finding no merit in the revision petition, the same stands
dismissed.
12. Interim order dated 08.07.2019 passed by this Court stands
vacated.
(NAMIT KUMAR)
13.12.2023 JUDGE
R.S.
Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No
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