Argued By:- Mr. Vikram Singh Advocate Vs. Tara Chand and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1154337
CourtPunjab and Haryana High Court
Decided OnJul-04-2014
AppellantArgued By:- Mr. Vikram Singh Advocate
RespondentTara Chand and Others
Excerpt:
cr no.6733 of 2013 -1- in the high court of punjab and haryana at chandigarh cr no.6733 of 2013. decided on:-july 4th, 2014. rameshwar. .........petitioner. versus tara chand and others .........respondents. coram: hon'ble mr. justice dr. bharat bhushan parsoon. argued by:- mr. vikram singh, advocate for the petitioner. mr. sharad aggarwal, advocate for respondents no.1, 3 and 4. dr. bharat bhushan parsoon, j.order dated 19.9.2013 (annexure p-4) passed by civil judge (junior division), mahendergarh vide which an application (annexure p-2) seeking permission to lead secondary evidence moved by the petitioner- plaintiff to prove an agreement to sell dated 31.5.2000 (for short, the agreement) was dismissed, is under challenge in this petition.2. a suit regarding specific performance of the agreement is pending adjudication in the lower court. claiming loss of original agreement, secondary evidence is sought to be led for proving the said document.3. it is claimed that the lower court wrongly dismissed the application without taking into consideration the basic ingredients, interalia, of section 65 of the indian evidence act, 1872 (for short, the act) and also, yag dutt 2014.07.08 15:01 i attest to the accuracy and integrity of this document cr no.6733 of 2013 -2- the fact that entire evidence is not to be evaluated and considered at the stage when permission to lead secondary evidence sought by the petitioner- plaintiff was being considered. it is also averred that validity and legality of the document sought to be produced by leading secondary evidence, is to be determined at the conclusion of the trial and not at this stage.4. counsel for the respondents, on the other hand, has urged that neither loss of agreement is proved on record nor the same is valid and genuine. dismissal of the petition has been sought.5. hearing has been provided to the counsel for the parties while going through the paper book.6. pivot of the suit of the plaintiff is the agreement, specific performance of which is pending adjudication in the suit. it is of 31.5.2000. not only loss thereof has duly been averred in the application dated 20.8.2013 but even other details thereof have been given in the said application. alleging loss of document on 8.7.2006, it is claimed by the petitioner-plaintiff that report of this fact was lodged vide ddr no.7 dated 15.7.2006 in police station, satnali. the petitioner-plaintiff had also disclosed that the stamp paper was bought by attorney of the respondent. after execution of the same, it was registered and verified on 31.5.2000. it was also notarized by the named notary public of mahendergarh. in secondary evidence, stamp vendor, notary public and the attesting witnesses of the agreement in addition to the petitioner-plaintiff are sought to be examined. plea of the respondents is not against existence of the document but their allegations are that the same is a forged and fabricated document. this plea thus concerns the probative value of the document.7. in surinder kaur versus mehal singh and others 2014 (1) yag dutt 2014.07.08 15:01 i attest to the accuracy and integrity of this document cr no.6733 of 2013 -3- rcr (civil) 467, this court had held as under: “the best evidence rule requires that if the contents of a writing are to be proved, the document must be proved. some documents are self-authenticated such as ancient documents, recorded deeds and other documents over 30 years old. however other documents are required to be proved in accordance with the provisions of the act. needless to say that in case where the document cannot be proved by primary evidence, secondary evidence to prove the same is permissible under the act.”. 8. reference in this regard may also be made to santosh devi versus jai narain and another 2012(4) plr426(p&h). more recently, in cr no.2359 of 2008 decided on 6.5.2014 titled rajesh yadav and others versus balbir singh and others, it has clearly been held by this court that when loss of original document is proved, secondary evidence to prove the same is to be allowed in terms of section 65 of the act. it was further held as under: “admissibility of evidence, relevance of evidence, proof of evidence and probative value of evidence all are distinct and separate matters. mode of leading secondary evidence is yet another aspect. nuances and shades of these concepts should not blur adjudication of the matter in dispute.13. perusal of these statutory provisions leaves no manner of doubt that secondary evidence can be given and is receivable by the courts in specified circumstances. it is further clear that there is no express provision in the act for making an application for leading secondary evidence. during the process of leading of evidence by a party, if it makes out a case for leading secondary evidence in terms of sections 63 and 65 of the act, it may do so and no formal permission from the court in this behalf for leading secondary evidence is required. as has already been noticed relevance, admissibility and probative value of evidence all are different from each other and require separate and distinct handling. leading of evidence cannot be shunned merely because its probative value would not be of high order.”. 9. when epicenter of the suit of the plaintiff is the agreement, loss yag dutt 2014.07.08 15:01 i attest to the accuracy and integrity of this document cr no.6733 of 2013 -4- of which has been duly established by the petitioner-plaintiff, rejection of his request for leading secondary evidence on the ground that the loss of document was not pleaded in the plaint or that the ddr was registered after delay of seven days of loss of the document, are not relevant factors. it is basic rule of pleadings that material facts and not evidence is to be put forth in the pleadings. validity and genuineness of a document as also probative value of the same are not the questions which should be posed by the civil court to itself at the time of considering request of a party for leading the evidence.10. sequelly, accepting the revision petition, impugned order dated 19.9.2013 (annexure p-4) passed by learned lower court is set aside. as a consequence thereof, application (annexure p-2) filed by the petitioner- plaintiff before the learned lower court for permission to lead secondary evidence to prove the agreement, is allowed.11. the parties are directed to appear before the learned lower court on 12.8.2014.12. nothing observed above shall have any bearing on the merits of the suit pending before the lower court. (dr. bharat bhushan parsoon) judge july 4th, 2014 'yag dutt' 1. whether reporters of local papers may be allowed to see the judgment?. yes 2. whether to be referred to the reporters or not?. yes 3. whether the judgment should be reported in the digest?. yes yag dutt 2014.07.08 15:01 i attest to the accuracy and integrity of this document
Judgment:

CR No.6733 of 2013 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.6733 of 2013. Decided on:-July 4th, 2014. Rameshwar. .........Petitioner. Versus Tara Chand and others .........Respondents. CORAM: HON'BLE MR. JUSTICE DR. BHARAT BHUSHAN PARSOON. Argued by:- Mr. Vikram Singh, Advocate for the petitioner. Mr. Sharad Aggarwal, Advocate for respondents No.1, 3 and 4. Dr. Bharat Bhushan Parsoon, J.

Order dated 19.9.2013 (Annexure P-4) passed by Civil Judge (Junior Division), Mahendergarh vide which an application (Annexure P-2) seeking permission to lead secondary evidence moved by the petitioner- plaintiff to prove an agreement to sell dated 31.5.2000 (for short, the agreement) was dismissed, is under challenge in this petition.

2. A suit regarding specific performance of the agreement is pending adjudication in the lower court. Claiming loss of original agreement, secondary evidence is sought to be led for proving the said document.

3. It is claimed that the lower court wrongly dismissed the application without taking into consideration the basic ingredients, interalia, of Section 65 of the Indian Evidence Act, 1872 (for short, the Act) and also, Yag Dutt 2014.07.08 15:01 I attest to the accuracy and integrity of this document CR No.6733 of 2013 -2- the fact that entire evidence is not to be evaluated and considered at the stage when permission to lead secondary evidence sought by the petitioner- plaintiff was being considered. It is also averred that validity and legality of the document sought to be produced by leading secondary evidence, is to be determined at the conclusion of the trial and not at this stage.

4. Counsel for the respondents, on the other hand, has urged that neither loss of agreement is proved on record nor the same is valid and genuine. Dismissal of the petition has been sought.

5. Hearing has been provided to the counsel for the parties while going through the paper book.

6. Pivot of the suit of the plaintiff is the agreement, specific performance of which is pending adjudication in the suit. It is of 31.5.2000. Not only loss thereof has duly been averred in the application dated 20.8.2013 but even other details thereof have been given in the said application. Alleging loss of document on 8.7.2006, it is claimed by the petitioner-plaintiff that report of this fact was lodged vide DDR No.7 dated 15.7.2006 in Police Station, Satnali. The petitioner-plaintiff had also disclosed that the stamp paper was bought by attorney of the respondent. After execution of the same, it was registered and verified on 31.5.2000. It was also notarized by the named Notary Public of Mahendergarh. In secondary evidence, stamp vendor, Notary Public and the attesting witnesses of the agreement in addition to the petitioner-plaintiff are sought to be examined. Plea of the respondents is not against existence of the document but their allegations are that the same is a forged and fabricated document. This plea thus concerns the probative value of the document.

7. In Surinder Kaur Versus Mehal Singh and others 2014 (1) Yag Dutt 2014.07.08 15:01 I attest to the accuracy and integrity of this document CR No.6733 of 2013 -3- RCR (Civil) 467, this Court had held as under: “The best evidence rule requires that if the contents of a writing are to be proved, the document must be proved. Some documents are self-authenticated such as ancient documents, recorded deeds and other documents over 30 years old. However other documents are required to be proved in accordance with the provisions of the Act. Needless to say that in case where the document cannot be proved by primary evidence, secondary evidence to prove the same is permissible under the Act.”. 8. Reference in this regard may also be made to Santosh Devi Versus Jai Narain and another 2012(4) PLR426(P&H). More recently, in CR No.2359 of 2008 decided on 6.5.2014 titled Rajesh Yadav and others Versus Balbir Singh and others, it has clearly been held by this Court that when loss of original document is proved, secondary evidence to prove the same is to be allowed in terms of Section 65 of the Act. It was further held as under: “Admissibility of evidence, relevance of evidence, proof of evidence and probative value of evidence all are distinct and separate matters. Mode of leading secondary evidence is yet another aspect. Nuances and shades of these concepts should not blur adjudication of the matter in dispute.

13. Perusal of these statutory provisions leaves no manner of doubt that secondary evidence can be given and is receivable by the courts in specified circumstances. It is further clear that there is no express provision in the Act for making an application for leading secondary evidence. During the process of leading of evidence by a party, if it makes out a case for leading secondary evidence in terms of Sections 63 and 65 of the Act, it may do so and no formal permission from the court in this behalf for leading secondary evidence is required. As has already been noticed relevance, admissibility and probative value of evidence all are different from each other and require separate and distinct handling. Leading of evidence cannot be shunned merely because its probative value would not be of high order.”. 9. When epicenter of the suit of the plaintiff is the agreement, loss Yag Dutt 2014.07.08 15:01 I attest to the accuracy and integrity of this document CR No.6733 of 2013 -4- of which has been duly established by the petitioner-plaintiff, rejection of his request for leading secondary evidence on the ground that the loss of document was not pleaded in the plaint or that the DDR was registered after delay of seven days of loss of the document, are not relevant factors. It is basic rule of pleadings that material facts and not evidence is to be put forth in the pleadings. Validity and genuineness of a document as also probative value of the same are not the questions which should be posed by the civil court to itself at the time of considering request of a party for leading the evidence.

10. Sequelly, accepting the revision petition, impugned order dated 19.9.2013 (Annexure P-4) passed by learned lower court is set aside. As a consequence thereof, application (Annexure P-2) filed by the petitioner- plaintiff before the learned lower court for permission to lead secondary evidence to prove the agreement, is allowed.

11. The parties are directed to appear before the learned lower court on 12.8.2014.

12. Nothing observed above shall have any bearing on the merits of the suit pending before the lower court. (Dr. Bharat Bhushan Parsoon) Judge July 4th, 2014 'Yag Dutt' 1. Whether Reporters of local papers may be allowed to see the judgment?. Yes 2. Whether to be referred to the Reporters or not?. Yes 3. Whether the judgment should be reported in the Digest?. Yes Yag Dutt 2014.07.08 15:01 I attest to the accuracy and integrity of this document