RAM NARESH MUDGAL Vs. MUNESH CHAND GUPTA

JUDGEMENT

(1.) By present petition, the petitioners have assailed an order dated 25th August, 2009 passed by the learned Sr. Civil Judge whereby he allowed an application of the respondent (plaintiff before the trial Court) under Section 65 of Evidence Act seeking permission to lead secondary evidence. The respondent filed a suit for permanent injunction against the petitioners seeking a restraint on the petitioners from creating third party rights and in this suit respondent contended that the respondent had entered into an agreement to sell in respect of the suit property with the father of the petitioners however, the original documents like receipts and agreement to sell were illegally retained by father of the petitioners and after his death, passed on to the petitioners and the petitioners failed to produce them on a notice under Order 12 of CPC in order to defeat the interest of the respondent therefore respondent be allowed to lead secondary evidence. The learned Senior Civil Judge observed that the documents sought to be proved by plaintiff (respondent herein) were necessary for proving the case and in absence of original documents secondary evidence could be given to the plaintiff to prove the existence/contents of the documents, no prejudice would be caused to the defendants. Therefore, secondary evidence was allowed to be led.

(2.) A perusal of notice under Order 12 Rule 8 CPC served by the respondent on petitioners would show that the respondent asked the petitioners to produce from their custody receipt dated 10.1.2004 agreement to sell dated 28.1.2004/7.2.2004. Another legal notice served by the respondent herein (plaintiff before the trial Court) would show that the respondent contended that he entered into an agreement to sell dated 28.1.2004 with Prem Narain, father of the petitioners. Prem Narain received part consideration out of total sale consideration of Rs. 15 lac and also executed a receipt and delivered the possession of the premises. Nowhere in this notice it was stated that Prem Narain retained the original agreement or receipt of payment neither there seems to be any logic behind the contention that when a purchaser pays money for purchase of property he would hand over the original receipt of money also to the seller and would also hand over the documents of sale to the seller instead of retaining the same as a proof of his having made payment and having purchased the property. The contention of the petitioners before the trial Court had been that no such documents were in possession of the petitioners, neither was there any occasion for the petitioners to have possessed the documents; the execution of documents itself was denied.

(3.) Section 65 of the Indian Evidence Act provides that the secondary evidence can be given of the existence of contents of the document in following cases: