N B VEERABHADRA PRASAD Vs. V V SATYANARAYANA

JUDGEMENT

(1.) This petition is filed by the plaintiffs challenging the judgment and order passed by the Sub-Judge, Nuzvid, dated 29-8-97 in O. S. No. 80/89. By the impugned judgment and order the objections raised by the defendants has been upheld by holding that the plaintiffs would not be entitled to lead secondary evidence relating to the alleged agreement of sale dated 10-8-88. The Court below has also observed that the in formation regarding the contents alleged in the agreement dated 10-8-88, could not be elicited from P.W. 3 since he is not mentioned as scribe in the plaint. The Court below further held that at any rate without issuing notice under Section 66 of the Evidence Act, the plaintiffs cannot be permitted to lead any secondary evidence relating to the alleged agreement of sale. Learned Counsel for the petitioners contended that the observations of the Court below regarding the material points are not correct. He submitted that in the pleading there is a mention of P.W. 3 being present at the time of the execution of the document and that P.W. 3 was the scribe and therefore the Court below has misdirected itself in observing that P.W. 3's name was not mentioned in the plaint as a scribe. Secondly he contended that no notice is required under Section 66 of the Evidence Act when the execution of the alleged document is denied by the defendant No. 1. Therefore he submitted that the impugned judgment is illegal and without jurisdiction and the same is liable to be set aside. On the other hand counsel for the respondents supported the impugned order. He submitted that from a reading of the entire plaint it discloses that nowhere P.W. 3 is described as a scribe. When there is no indication in the plaint that P.W. 3 was the scribe he cannot be examined as scribe of the alleged document dated 10-8-88, for the purpose of leading secondary evidence. He further submitted that whatever stand taken by the defendants, it is for the plaintiff to prove the ingredients of Section 66 of the Evidence Act. He further submitted that at any rate when the document is reduced into writing no oral evidence would be admissable.

(2.) By reading the impugned order, it is clear that the Court below refused the secondary evidence to be led by the plaintiffs on two counts: (1) The entire plaint pleadings does not mention P. W. 3 as scribe of the agreement of sale dated 10-8-1988 and (2) the plaintiffs have not issued any notice to the defendants to produce the document and in the absence of such a notice, the plaintiffs are not entitled to lead secondary evidence.

(3.) In terms of Section 60 of the Indian Evidence Act, 1872 (in short ' the Act') the contents of the documents must be proved and under Section 61 of the Act the contents of the documents may be proved either by primary evidence or by secondary evidence. Now it is the case of the plaintiffs that the alleged agreement of sale dated 10-8-1998 and also promissory note were delivered to the defendants for drafting and execution of the sale deed, but the defendants have not eitherexecuted the sale deed nor the agreement of sale was returned to them. Hence, they accordingly filed a suit for specific performance. From this fact pleaded by the plaintiffs, one thing is certain that according to the case of the plaintiffs, the alleged agreement of sale was given to the defendants, but they have denied the execution of the sale (sic. same). By filing the written statement, the defendants have denied the execution of alleged agreement of sale dated 10-8-1988. In this context, I have to see whether the impugned order of the Court below calls for any interference at the hands of this Court.