B N SAMPATH KUMAR Vs. RAHIMUNISSA BEGUM

JUDGEMENT

(1.) The petitioner has raised the challenge to the order, dated 6.7.2009 (Annexure-E) passed by the Court of the Civil Judge (Sr.Dn.) and Prl. J.M.F.C., K.G.F. in O.S. No. 191/2005.

(2.) The facte of the case in brief are that the petitioner filed the suit against the respondent seeking the relief of specific performance of the agreement, dated 19.6.1989. In the said suit proceedings, the petitioner produced the xerox copy of the affidavit stating that it is by way of an agreement of sale executed by one Abdul Kareem Sab in favour of the petitioner. On the Trial Court refusing the permission to the petitioner to mark the said xerox copy as an exhibit, this petition is filed.

(3.) Ms. Ujwala, the learned Counsel appearing for M/s. Kumar and Kumar for the petitioner submits that the original affidavit which itself is by way of sale agreement, was in the possession of the said Abdul Kareem Sab. The petitioner retained the xerox copy of the said affidavit. She submits that the Trial Court has fallen into an error by refusing to admit the document in evidence on the ground that its executant is not alive. She further submits that the petitioner has complied with the requirement of law by putting the respondent on notice in the form prescribed by Order 11 Rule 16 of C.P.C. Only on the failure of the respondent to produce the original affidavit, the petitioner requested the Trial Court to permit him to lead the secondary evidence. She submits that the secondary evidence can be marked subject to the objections of the opposite party. Therefore, she submits that there is no justification for turning down the petitioner's request doubting the genuineness of the xerox copy. In support of her submissions, she relies on this Court's decision in the case of Gafarsab @ Sati Gafar SAB v. Ameer Ahamed, 2006 ILR(KAR) 169. The relevant paragraphs of the said decision are extracted hereinbelow: