KIRTIKUMAR MANSUKHLAL BADANI Vs. SHANTABAI BHAIRULAL SHARMA

JUDGEMENT

(1.) Rule made returnable forthwith. Heard the matter finally by consent of the learned counsels appearing for the parties.

(2.) The petition challenges the order dated 29.11.2014 passed by the trial Court below Exh. 14 in Regular Civil Suit No. 466 of 2012, rejecting an application for grant of permission to adduce secondary evidence on the contents of the documents i.e. agreements of sale dated 29.07.2004 and 08.08.2007. The trial Court has held that, on perusal of the plaint, it is seen that the sentence "the original agreements are in possession of the defendant" is added in para 2 later on in handwriting. It further holds that, it cannot be ascertained as to when the said addition was done by the plaintiff and prima facie it appears to be after thought addition. It further refers to the averment made in para 4 of the plaint that the plaintiff contended that he is relying upon agreement of sale dated 29.07.2004 and the execution deed dated 08.08.2007. It holds that when the plaintiff rely on such document then it is assumed that the documents are in his possession. The defendant has not given any explanation in respect of this and there is no material on record to show that the original document is in possession of the defendant.

(3.) With the assistance of the learned counsels appearing for the parties, I have gone through the copy of the plaint and also the written statement. In a suit for specific performance of the agreements dated 29.07.2004 and 08.08.2007, several sentences added in the plaint are handwritten though rest of the plaint is typed. The plaint bears a date of 09.12.2011. The written statement was filed by the defendant on 04.07.2012. The written statement denies the averments made in the plaint including those which are in handwriting. In the application at Exh. 14 filed under Section 65 of the Evidence Act, the plaintiff claims permission to adduce secondary evidence in respect of the contents of the documents i.e. agreements of sale dated 29.07.2004 and 08.08.2007. He alleges that the documents are in possession of the respondent/defendant. Though reply is filed, this fact is not denied.