Punjab-Haryana High Court
Vijay Kumar And Another vs M/S Rajender Kumar Anil Kumar And ... on 3 April, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:044762
CR-660-2021 2024:PHHC:044762
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
125
CR-660-2021
Date of decision: 03.04.2024
VIJAY KUMAR & ANR. ..Petitioners
Versus
M/S RAJENDER KUMAR ANIL KUMAR & ANR. ..Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. Ajay Jain, Advocate
for the petitioners.
Mr. Rajesh Sethi, Advocate
for respondents.
ANIL KSHETARPAL, J(Oral)
1. The petitioners before this Court are the plaintiffs. They have
filed a suit for possession by way of redemption of the property, which was
mortgaged by their predecessor in favour of the defendants. The plaintiffs
have claimed the property by virtue of a sale deed executed on 18.10.2004
by Sh. Suraj Rattan son of Sh. Nebh Raj. Sh. Nebh Raj was the mortgagee of
the property. Smt. Kako Devi and Sh. Nebh Raj were the owners, who had
mortgaged the property. The learned counsel representing the respondents
submits that Sh. Nebh Raj was representing Smt. Kako Devi-the owner as
attorney.
2. Be that as it may.
3. At one stage, defendant No.2 Smt. Krishna Rani filed petition
seeking eviction of the petitioners, who were in possession of the property as
tenants. The Rent Controller ordered their eviction, which was subsequently
upheld by the higher Courts.
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4. As noticed, the plaintiffs filed suit by virtue of the sale deed
dated 18.10.2004, executed by Sh. Suraj Rattan son of Sh. Nebh Raj. During
the pendency of the suit, an application was filed by the plaintiffs for
permission to lead secondary evidence in order to prove photocopy of the
family partition dated 30.03.1990 between Sh. Nebh Raj and his family
members. The trial Court has dismissed the application on the ground that
the aforesaid family settlement has not been made part of the plaint and the
plaintiffs have not given detail as to when and how the original document
was lost or misplaced.
5. This Bench has heard the learned counsel representing the
parties at length and with their able assistance perused the paperbook.
6. The learned counsel representing the petitioner submits that in
view of the judgment passed in Ravinder Singh @ Jassi Vs. Indermohan
Singh, 2022(4) RCR (Civil) 181, there is no requirement of filing an
application for secondary evidence. He submits that the party to the suit is
entitled to lead evidence and the Court is entitled to subsequently examine
"whether the evidence led is primary or secondary?" At that stage, the Court
can examine "whether the evidence so led, fulfills the parameters laid down
under Section 65 of the Indian Evidence Act, 1872?". He further submits that
the plaintiffs have filed the suit as owners. In order to prove that fact, they
have to prove the title of their vendor. Hence, the reference to the deed of
partition is subject matter of the evidence, which need not be incorporated in
the pleadings. He further refers to Order VI Rule 2 of the Code of Civil
Procedure, 1908 (hereinafter referred to as the "CPC"), in support of his
submissions.
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7. Per contra, the learned counsel representing the respondents
submits that the plaintiffs are required to incorporate in their plaint, the
necessary facts, which are required to be proved by evidence. He submits
that the plaintiffs cannot be permitted to lead evidence, which is not pleaded
by him. He further submits that the aforesaid sale deed has been discarded in
the rent proceedings and once the primary evidence cannot be led, no
amount of secondary evidence can be permitted.
8. This Court has considered the submissions of the learned
counsel representing the parties.
9. 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.
10. 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.
11. In Civil Revision No.2575 of 2020, 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
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CR-660-2021 2024:PHHC:044762
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."
12. As far as the first objection of the respondents is concerned, it
may be noted that Order VI Rule 2 of the CPC, provides that the pleadings
shall contain bare minimum facts and that also in concise form. It is
specifically proved under Order VI Rule 2(i) of the CPC that the evidence is
not required to be incorporated or made part of the pleadings. In this case,
the plaintiffs have filed suit for possession by way of redemption of
mortgage. They claimed to have stepped into the shoe of mortgager by virtue
of a sale deed. They want to prove that their vendor had possessed title.
Hence, the evidence sought to be led is not beyond pleadings. The evidence
sought to be led in fact permit the plaintiffs to establish their case.
13. As regards objection No.2, it may be noted that the Rent
Controller is a Court of limited jurisdiction. In any case, in that proceedings,
the question was with regard to the eviction of the plaintiffs, who were
tenants. In this suit, the plaintiffs are claiming to be owner by virture of a
registered sale deed. Hence, an opportunity is required to be given to prove
their case.
14. The last submission of the learned counsel representing the
respondent is in fact covered by first objection, however, as already noticed,
the evidence sought to be led by the plaintiffs is not alien to their suit.
15. Consequently, the revision petition is allowed. The impugned
order is set aside.
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16. All the pending miscellaneous applications, if any, are also
disposed of.
April 03rd, 2024 (ANIL KSHETARPAL)
Ay JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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