MANGAT RAM Vs. ASHOK KUMAR SHARMA

JUDGEMENT

(1.) BY this petition under Article 227 of the Constitution of India, the petitioner has assailed an order dated 23rd April, 2009 whereby the petitioner was not allowed to lead secondary evidence to prove the originals of documents which were in the nature of power of attorney and agreement to sell.

(2.) IT is submitted by counsel for the petitioner that the respondent was his son. The petitioner was owner of the property in question and has been residing in the property. The property was ancestral property. The petitioner allowed respondent, his eldest son, to reside with him while rest of the family was residing in another house. In the year 2004, the petitioner lost his wife and became dependent on the respondent for his daily needs. The respondent and his second wife started putting pressure on him to sell the property and give money to them so that the respondent could buy a plot in Delhi. The petitioner refused to oblige. However, when petitioner found that respondent was trying to sell his property, he got published a notice in newspaper that he was the owner of the property and the people should desist from purchasing the property. He also filed the suit in question against his son seeking permanent injunction restraining his son from selling and alienating the property. The original documents of the property which were in his custody earlier, fell in hands of the respondent during his living with him. The petitioner wanted to prove his ownership of the property by virtue of secondary evidence. The petitioner served a notice on the respondent to produce the original documents relating to the title of the property. He moved the application under Section 63 of Evidence Act for permission to place on record the photocopies of the documents and to prove the documents by secondary evidence, which the trial court dismissed by impugned order.

(3.) IT is argued by counsel for the petitioner that trial court wrongly observed in its order that the plaintiff failed to disclose in the plaint that the original documents were in possession of defendant whereas the plaintiff, in his plaint pleaded that the original documents of the property were in possession of the defendant. In the written statement, defendant denied these averments in paras 8 and 9. In replication, the plaintiff re -asserted that the original documents were with the defendant. A perusal of record would show that these averments were there in the pleadings.