Present:- Mr. Prateek Sodhi, Advocate, for the
petitioners.
5. On 24.03.2025, on the basis of the report of the Registry, it
was observed that the respondents had been served, however, none had
appeared on their behalf. Thereafter, the case was taken up on
15.07.2025, 06.11.2025 and today, however, no one has appeared on
behalf of the respondents to oppose the revision petitions filed by the
That the answering defendants neither borrowed any
amount from the plaintiff as alleged by the plaintiff as
mentioned in the plaint nor issued any cheques in
favour of the plaintiff. In fact, Vinod Kumar Sharma @
Bobby brother of defendant Pankaj Sharma and plaintiff
were doing private job and were colleague in Tara
Automobile, Abohar and both were close friend from
college time, due to the above the plaintiff and family of
the Pankaj Sharma defendant having good relation with
each others and blind faith upon each other. It is
submitted that the plaintiff wanted to start the business
of sale and purchase of beverages products. So, the
plaintiff approached concerned person/ official of Varun
Beverages, Jallandhar for sub-dealership of Pepsi Brand
products and the plaintiff succeeded to obtain sub
dealership at Fazilka and for this purpose, the plaintiff
PUNEET SACHDEVA approached to the defendant for using the firm of
defendants for his above business and the plaintiff
wanted to manage the bank account of the defendant
firm for starting and doing the above business of the
plaintiff in name of defendant firm. Due to good /
cordial relation with each others, the defendant agreed
to help the plaintiff by handing over cheque books of
the defendants firm to the plaintiff and allowing him to
do his business of above beverages in the name of
defendant firm. Thereafter on 17.04.2017 the plaintiff
taken shop on rent for above business at Fazilka from
Pawan Bhateja Son of Amar Chand and rent note was
duly executed between the plaintiff and above Pawan
Bhateja in presence of witnesses, which was typed by
Raj Kumar typist Fazilka and was entered and attested
by the Notary Public, Fazilka. Sh. Niranjan singh
Minhas, Advocate. It is submitted that the bank account
of the defendant firm was fully managed by the plaintiff
and the plaintiff used to transfer/deposited the money
from his account to the account of defendant firm for
payment of purchased Beverages products from
different dealers of Beverages on same day or the next
day the said deposited amount transferred to account of
the above dealers. All the beverages products were
purchased and sold by the plaintiff himself with his own
signatures through valid bilis. Bill Books were also
printed by the plaintiff under his own name and mobile
number and name and mobile number of Jaideep son of
Khiali Ram, who Is close friend and relative of the
plaintiff and were also partner/ employee in the above
business. After lapse of time, the plaintiff become
dishonest and greediness prevail in his mind for
achieving his ulterior motive and the plaintiff taking
undue advantage of the bank entries and blind faith of
the defendants, the plaintiff filed the present suit with
Intent to wrongful gain. The relevant record and
witnesses fully prove the true facts of the case that the
suit of the plaintiff is false, frivolous and filed with
intent to wrongful gains."
8. A perusal of the above would show that the petitioners
have elaborated their plea which had been taken earlier in the original
written statement and have given the details as to how the plaintiff had
misused the documents so as to substantiate his case. No admission
made by the petitioners earlier has been withdrawn. A perusal of the
impugned order dated 15.02.2025 vide which the prayer for amendment
was dismissed by the trial Court would show that the documents which
are now sought to be mentioned in the para to be incorporated, were
already put to the plaintiff in his cross-examination and thus, the said
documents were already on record. The primary ground for rejection of
the application amendment was delay. Although there was delay in
moving the application, inasmuch as, the earlier written statement was
filed on 05.04.2023 and the application for amendment had been filed
on 15.02.2025 but the said amendment is necessary for the proper and
final adjudication of the case and would meet the parameters laid down
by the Hon'ble Supreme Court in the case of Life Insurance
Corporation of India (supra), as in the said judgment the Hon'ble
Supreme Court had observed that a prayer for amendment is to be
allowed if the amendment is required for effective and proper
adjudication of the controversy between the parties and to avoid
multiplicity of litigation. In the present case, this Court is of the opinion
that the amendment is necessary for proper and effective adjudication
of the case. The exceptions mentioned in the said judgment do not arise
in the present case as the petitioners do not seek to withdraw any
admission made by them nor do they give rise to a time barred claim
nor does the amendment cause injustice to the other side rather non-
allowance of the amendment would cause injustice to the petitioners.
The Hon'ble Supreme Court had further observed in the said judgment
that while dealing with a prayer for amendment of the pleadings, the
Court should avoid hypertechnical approach and is ordinarily required
to be liberal, more so, when the other party can be compensated by
cost.
9. The Hon'ble Supreme Court in the case of Rajesh Kumar
Aggarwal & Ors. vs. K.K. Modi & Ors. reported as 2006(2) RCR
(Civil) 577 had observed that all the amendments which are necessary
for determining the main question in controversy between the parties
should be allowed and at the stage of allowing the amendment, the
merits of the amendment are not required to be considered. The relevant
portion of the said judgment is reproduced hereinbelow:-
"13. The object of the rule is that Courts should
try the merits of the case that come before them and
should, consequently, allow all amendments that may be
necessary for determining the real question in
controversy between the parties provided it does not
cause injustice or prejudice to the other side.
xxx xxx xxx
17. While considering whether an application for
amendment should or should not be allowed, the Court
should not go into the correctness or falsity of the case in
the amendment. Likewise, it should not record a finding
on the merits of the amendment and the merits of the
amendment sought to be incorporated by way of
amendment are not to be adjudged at the stage of
allowing the prayer for amendment. This cardinal
principle has not been followed by the High Court in the
instant case.
xxx xxx xxx
Since the Court has entered into a discussion into
the correctness or falsity of the case in the amendment,
we have no other option but to interfere with the order
passed by the High Court. Since it is settled law that the
merits of the amendment sought to be incorporated by
way of amendment are not to he adjudged at the stage of
allowing prayer for amendment, the order passed by the
High Court is not sustainable in law as observed by this
Court in Sampath Kumar vs. Ayyakannu and Another,
(2002) 7 SCC 559."
10. Learned counsel for the petitioners has stated that the case
is fixed for the evidence of the petitioners and as per the last order, the
matter was referred for mediation.
11. Keeping in view the abovesaid facts and circumstances,
this Court is of the view that Civil Revision No.1369 of 2025 deserves
to be allowed and the impugned order dated 15.02.2025 deserves to be
set aside and the application filed by the petitioners for amendment
deserves to be allowed subject to the petitioners paying an amount of
₹10,000/- as cost to respondent No.1.
12. Ordered accordingly.
13. The said amount would be deposited by the petitioners
within a period of two weeks from today and on depositing the same,
the same would be released to respondent No.1. It is made clear that in
case the said amount is not deposited, the present revision petition
would be deemed to have been dismissed. Since the plaintiff has led his
entire evidence, after the amendment is allowed, it would be open to the
petitioners to lead their entire evidence and respondent No.1-plaintiff
would be granted liberty to rebut the entire evidence led by the
petitioners, irrespective of whether the onus of a particular issue is on
the plaintiff or on the defendants since the plaintiff would have led his
evidence unmindful of the details in the amended written statement.
CR-1368-2025
14. With respect to challenge to the order dated 28.01.2025
vide which the application for leading secondary evidence which is
subject matter of challenge in CR No.1368 of 2025, it would be
relevant to note that as per the law laid down by the coordinate Bench
of this Court in the case of Madan Lal (supra), it was observed that
there is no requirement to seek prior permission of the Court before
leading secondary evidence, although a practice has developed to seek
prior permission before leading secondary evidence. However, the said
practice is not supported by any statutory provision and, therefore,
merely because prior permission has not been sought, the evidence
which has come on the file in the form of secondary evidence cannot be
ignored, if it fulfills the requirement of Section 65 of the Indian
Evidence Act. The relevant portion of the said judgment is reproduced
hereinbelow:
"13. As regards the requirement of prior permission to
produce secondary evidence, it may be noted that
Chapter V of the Indian Evidence Act, 1872 provides
that the party is required to produce primary evidence.
However, Section 63 provides for and defines the
secondary evidence in absence of primary evidence.
Section 65 of the Indian Evidence Act, deals with the
circumstances under which the secondary evidence can
be led. The distinction between the primary evidence and
secondary evidence is nature of evidence. In absence of
primary evidence, secondary evidence can be examined
by the Court subject to fulfillment of the requirements of
Section 65 of the Indian Evidence Act. There is no
requirement that before leading secondary evidence,
prior permission of the Court is required to be obtained.
No doubt, a practice has developed to seek prior
permission to lead secondary evidence and
granted/refused by the Courts, however, this practice is
not supported by the statutory provision. Therefore,
merely because a prior permission has not been sought,
the evidence which has come on file in the form of
secondary evidence cannot be ignored, if it fulfills the
requirement of Section 65 of the Indian Evidence Act.
XXX XXX XXX
17. This Court has come across various judgments
passed by the Courts wherein different High Courts have
taken a view that prior permission to lead secondary
evidence is not required and the evidence so led by the
party can be in the nature of primary evidence or
secondary evidence. Even if it is assumed that formal
permission is required, that can be granted by the Court
while examining and evaluating the evidence. The
practice of seeking prior permission by moving an
application to that effect results in unnecessary delay of
the trial. If the application is accepted or rejected, the
order so passed by the trial Court is further challenged
before the Higher Court which again results in delay of
the trial. Such delay can be very well avoided by the
Courts by examining the evidence and granting
permission if required after satisfying that requirements
of Section 63 and Section 65 of the Evidence Act stand
complied with. Reference in this regard can be made to
two judgments of the Delhi High Court, first, 2009 (32)
RCR (Civil) 54, Sanyogta Prakash V. Dhira Bala
Malhotra and others, second, 2009 (12) RCR (Criminal)
701, Prem Chandra Jain (deceased) represented by LRs
Shri Bharat Bhushan Jain, Advocate and others V. Sri
Ram (deceased) represented by LRs Shri Sunil Kumar
Arora and others, the judgment passed by the Allahabad
High Court in the case of Hameed and others V.
Kanhaiya, 2004 AIR (Allahabad) 405. Reference in this
regard can also be made to the judgments of this Court in
the case Harjinder Singh V. Ranjit Kaur and others, 2016
(3) RCR (Civil) 229, Rajesh Yadav and others V. Balbir
Singh and others 2014 (5) RCR (Civil) 941, Harbans
Kaur and others V. Beant Kaur and others 2014 (9) RCR
(Civil) 3009, Anupam Jain wife of Rakesh Jain V.
Kubwant Gupta wife of Surinder Kumar and others 2016
(3) RCR (Civil) 220"
15. As has been stated hereinabove, from the perusal of the order
dated 15.02.2025 vide which the application under Order VI Rule 17 CPC
filed by the petitioners was dismissed, it is apparent that said documents
had already been put by the petitioners to the plaintiff in his cross-
examination and thus, they are already on the record. In the said
circumstances, by dismissing the application filed by the petitioners for
secondary evidence, the Court is excluding the consideration of the said
documents, without considering the entire evidence in totality. It is the
case of the petitioners that the said documents are very relevant, inasmuch
as, the said documents show that the plaintiff has used the name of the
firm M/s Saraswati Trading Corporation for dealing with third parties
including Varun Beverages. It is open to a party to lead evidence and to
produce documents in support of his plaint and it is also open to the
opposite party to raise all objections qua the admissibility, relevancy etc.
of the said documents and after due opportunities are given to both the
parties to lead all evidence in the said regard, the Court can consider all
the aspects including the aspect as to whether the parameters of Section 65
of the Indian Evidence Act (Section 60 of BSA, 2023) have been met with
at the time of final adjudication.
16. Keeping in view the abovesaid facts and circumstances,
CR No.1368 of 2025 is allowed and the order dated 28.01.2025 is set
aside with a clarification to the effect that the petitioners are permitted to
lead all evidence in support of the documents which are already on the
record of the trial Court. It would be open to the petitioners to argue at the
stage of final arguments that the said documents have been duly proved
and the parameters mentioned under Section 65 of the Indian Evidence
Act (now Section 60 of BSA, 2023) are duly met. It would also be open to
respondent No.1-plaintiff to raise all objections in accordance with law
and all the said aspects would be considered, at the stage of final
arguments, by the trial Court.
17. Pending applications, if any, stand disposed of.
March 18th, 2026 (VIKAS BAHL)
Puneet JUDGE
Whether speaking/reasoned : Yes
Whether reportable : Yes
