Full Judgment
L.N. Mittal, J.
Oral:
CM No. 15119.CII of 2012
Allowed as prayed for.
CR No. 3565 of 2012
Defendant Paramjit has filed this revision petition under Article 227 of the Constitution of India impugning order dated 27.4.2012 passed by learned Civil Judge (Senior Division), Karnal thereby allowing application Annexure P/4 moved by respondents/plaintiffs for permission to lead secondary evidence of alleged sale deed dated 10.9.2004.
Plaintiffs have filed suit for possession of suit property by specific performance of agreement to sell against defendant/petitioner. It was alleged that pursuant to agreement to sell dated 27.8.2004, draft sale deed was prepared on 10.9.2004 on stamp papers worth Rs.68,800/-. The sale deed was drafted in favour of plaintiff no. 1 only with consent of plaintiff no. 2 who is wife of plaintiff no. 1. The plaintiffs also handed over bank draft dated 9.9.2004 of Rs.6 lacs to the defendant. However, after execution of the sale deed, the defendant after affixing his signatures told the plaintiffs that he had also to obtain signatures of his brother Rajeshwar who is also co-sharer in the suit land. On this pretext, the defendant went away with original sale deed and plaintiffs kept on waiting in the office of Sub Registrar. The defendant did not do the needful thereafter. The original sale deed is also in possession of the defendant. On these averments, plaintiffs sought permission to lead secondary evidence of the aforesaid sale deed.
The application was resisted by the defendant who controverted the averments made in the application.
Learned trial court vide order dated 27.4.2012 allowed the plaintiffs' application for secondary evidence. Feeling aggrieved, defendant has filed this revision petition.
I have heard counsel for the petitioner and perused the case file.
Counsel for the petitioner contended that existence of the original document has to be proved before secondary evidence thereof can be permitted. Reliance in support of this contention has been placed on judgment of this Court in Kartar Kaur vs. General Public and others, 2003(2) HLR 501. It was contended that in the instant case, plaintiffs have not proved the existence of the alleged original sale deed and therefore, they could not be permitted to lead secondary evidence. It was also contended that plaintiffs in their plaint did not allege that they possessed photostat copy of the alleged sale deed but pleaded this fact for the first time in application of secondary evidence. It was contended that for this reason also, secondary evidence of the sale deed could not be allowed. Reliance in support of this contention has been placed on judgment of this Court in Mangat Ram vs. Prabhu Dayal and others, 2002(4) RCR (Civil) 706.
I have carefully considered the aforesaid contentions, but the same cannot be accepted. It is the whole case of the plaintiffs in the plaint itself that the defendant had taken away the original sale deed draft. It was on this basis that the suit was instituted. On the same plea, the plaintiffs have sought permission to lead secondary evidence of the draft sale deed. Plaintiffs have produced copy of entry from the register of Treasury depicting that the aforesaid stamp papers were purchased in the name of petitioner - defendant. This is very strong circumstance to depict the existence of the original sale deed. The defendant would not have purchased stamp papers worth Rs.68,800/- just for nothing. Judgment in the case of Kartar Kaur (supra) has no applicability to the instant case. In that case, secondary evidence of Will was sought to be produced, but there was no entry of the Will in the register of Deed Writer nor any other evidence to prove existence of the Will. In the instant case, however, purchase of stamp papers in the name of defendant - petitioner for the sale deed is a very strong piece of evidence to depict the existence of the original sale deed. Consequently, judgment in the case of Kartar Kaur (supra) has no applicability to the instant case.
It is correct that plaintiffs have not pleaded in the plaint that they possessed photostat copy of the original sale deed. However, they have pleaded that original sale deed was taken away by the defendant. Only after the plaintiffs are permitted to lead secondary evidence that they would be able to prove the execution of the original sale deed as well as the photostat copy thereof. Judgment in the case of Mangat Ram (supra) has no applicability to the case in hand because in that case, the original documents had been lost or destroyed and the party failed to show as to how it procured photostat copies of the documents because the documents were not required to kept in duplicate. In the instant case, however, the original sale deed has not been lost or destroyed but was taken by the defendant. However, plaintiffs could obtain photostat copy thereof in the first instance itself.
For the reasons aforesaid, I find that the trial court has rightly permitted the plaintiffs to lead secondary evidence of the alleged sale deed. There is no infirmity, perversity, illegality or jurisdictional error in the impugned order of the trial court so as to call for interference by this Court in exercise of power of superintendence under Article 227 of the Constitution of India. The revision petition is meritless and is, therefore, dismissed in limine.
However, nothing observed in this order or in impugned order of the trial court shall have any bearing on proof of execution of the sale deed in question.