Punjab-Haryana High Court
Juhruddin (Deceased) Through His Lrs vs Iqbal And Others on 19 December, 2023
2023:PHHC:163974
C. R. No. 7670 of 2023 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Sr. No.114
Case No. : C. R. No. 7670 of 2023
Date of Decision : December 19, 2023
Juhruddin (deceased) through LRs .... Petitioners
vs.
Iqbal and others .... Respondents
CORAM : HON'BLE MR. JUSTICE GURBIR SINGH.
* * *
Present : Mr. Sachin Mittal, Advocate
and Mr. Akshat Mittal, Advocate
for the petitioners.
* * *
GURBIR SINGH, J. :
1. Challenge in this revision petition filed under Article 227 of the
Constitution of India is to the order dated 16.09.2023 (Annexure P-1),
passed by learned Additional Civil Judge (Senior Division), Ferozepur
Jhirka, District Mewat (hereinafter referred to as - the Trial Court), whereby
application filed by the respondents/plaintiffs, seeking permission to prove
the agreement to sell dated 29.08.2014 by leading secondary evidence, has
been allowed.
2. Brief facts, as culled out from the petition, are that the
plaintiffs/respondents filed a suit for specific performance of the agreement
to sell dated 29.08.2014, entered into by the defendants/petitioners with
plaintiffs/respondents.
3. During pendency of the case, the plaintiffs/respondents moved
application for grant of permission to lead secondary evidence of the
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agreement to sell dated 29.08.2014, entered into between the parties. It was
submitted therein by the plaintiffs/respondents that on 16.07.2016, during
their visit to the Court Complex, Ferozepur Jhirka, they lost the original
agreement. DDR was also registered regarding this loss. It was further
pleaded in the application that the true and correct photocopy of the
agreement was in the possession of the plaintiffs/respondents and they
intended to prove the aforesaid agreement to sell by way of secondary
evidence. The defendants/petitioners filed reply to the application. The
application was allowed by the learned Trial Court vide impugned order
dated 16.09.2023.
4. Learned counsel for the petitioner submits that the
plaintiffs/respondents are trying to rely upon a forged document. Neither the
existence nor the loss of the alleged agreement to sell is proved in the
present case. The DDR lodged with the police does not even relate to the
plaintiffs/respondents. Rather, it pertains to some offence allegedly
committed by one Yashpal etc. under Sections 148, 149, 323, 324, 506 IPC.
The target date in the agreement to sell has also been changed by the
plaintiffs/respondents so as to bring the suit within limitation. Otherwise,
the suit is also barred by limitation. So, the learned Trial Court has erred in
allowing the application primarily on the ground of existence of document
being not in dispute. So, the application for secondary evidence was liable
to be rejected.
5. I have heard learned counsel for the petitioners and perused the
case file.
6. The learned Trial Court has passed a detailed order dated
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16.09.2023, wherein pleadings of both the parties and case law cited by them
have been considered. Provisions of Section 65 of the Indian Evidence Act
have also been discussed. It is clear therefrom that allowing secondary
evidence of the agreement to sell would aid the Court in deciding the
dispute. The onus of loss of the document in question would have to be
discharged by the plaintiffs/respondents.
7. A Co-ordinate Bench of this Court, in Ashok Kumar vs.
Sudesh Rani and another - CR-8166-2018, decided on 21.07.2023, after
examining the provisions of the Indian Evidence Act, 1872, Code of Civil
Procedure, 1908 and the High Court Rules and Orders, has held that there is
no provision for filing an application for permission to lead secondary
evidence. The relevant extract of the said judgment reads as under :-
"4. In fact, after examining the
provisions of the Indian Evidence Act, 1872, Code
of Civil Procedure, 1908 and the High Court
Rules and Orders, this Court in RSA-327-1989,
titled as "Madan Lal Vs. Shankar and others",
decided on 01.11.2018, came to a conclusion that
there is no provision for filing an application for
permission to lead secondary evidence.
5. In Civil Revision Application No.82
of 2016, decided on 10.11.2017, Bombay High
Court also held that such applications are being
filed under misconception, which has now
attained provisions of an epidemic. Even the
Supreme Court in Dhanpat Vs. Sheoram
(Deceased) through LRs and others, 2020 SCC
online SC 606 made observations in this regard.
6. In Civil Revision No.2575 of 2020,
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titled as "Vinod Kumar Vs. Satbir Singh",
decided on 03.03.2021, this Court has held as
under :-
"Keeping in view the aforesaid facts, this
Court is of the opinion that the order under
challenge cannot be sustained. This order
is declared to be inoperative. The Civil
Court is directed to decide the aspect of
admissibility of the secondary evidence
while deciding the suit. Needless to observe
that the plaintiff shall not be denied an
opportunity to lead the relevant evidence.
The trial court while finally deciding the
case will be entitled to evaluate such
evidence and decide whether the plaintiff
has successfully proved the existence,
validity and genuineness of the agreement
to sell and the receipt thereof by way of
secondary evidence."
8. Thus, a party cannot be denied opportunity to lead relevant
evidence. If no application is filed to lead secondary evidence of document,
even then the Court is duty bound to record evidence. The party leading
such evidence is to prove existence and loss of original document. If
photocopy is proved by way of secondary evidence, then Court is required to
give finding if it is copy of original and to satisfy itself that possibility of
tampering with the document is ruled out. After recording of the evidence,
the Trial Court, while finally deciding the case, would certainly evaluate
such evidence as to whether the plaintiffs/respondents have successfully
proved the existence, validity or genuineness of the agreement to sell in
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question, by way of secondary evidence.
9. Since the learned Trial Court has already held that the plaintiffs/
respondents are allowed to lead secondary evidence, so, the
plaintiffs/respondents are entitled to prove the agreement to sell by way of
leading secondary evidence and also to prove its existence and loss. Since
photocopy is being proved by way of secondary evidence, so, the Court must
satisfy at the time of final hearing that it is not tampered with.
10. In view of the above findings, this revision petition is found to
be without any merit and the same is accordingly dismissed.
11. Pending applications, if any, shall stand disposed of along with
this judgment.
December 19, 2023 (GURBIR SINGH)
monika JUDGE
Whether speaking/reasoned ? Yes/No.
Whether reportable ? Yes/No.
