RAM SINGH SAHU Vs. RAM DAYAL GANGARAM MAHESHWARI

JUDGEMENT

(1.) THE applicant/plaintiff being aggrieved by the Order dated 7 -9 -1999, passed in Civil Suit No. 140 -A/1997 by the learned IInd Civil Judge, Class -II, Bilaspur, rejecting the plaintiffs application seeking permission to lead secondary evidence, has filed this revision petition. The brief facts are that the applicant/plaintiff filed a suit before the trial Court seeking declaration and injunction that the plaintiff in fact is the real allottee and the rights of defendant No. 1 in relation to the allotment have come to an end, and a mandatory injunction be issued against the respondent No. 4 to complete the proceedings and not to dispossess the present plaintiff from the suit premises. The plaintiffs case was that house in dispute was allotted in favour of non -applicant No. 1 but as he was in jail, the applicant paid a sum of Rs. 20,000/ - to his wife that is non -applicant No. 2. After the non -applicant No. 1 was released, he executed a receipt in favour of the present applicant. The plaint further says that non -applicants Nos. 1 and 2 had been assuring the plaintiff that needful would be done in his favour, but the plaintiff received a notice out of the blue that he was a tenant and was required to vacate the premises. Apprehending a foul play, he filed a suit for the said reliefs. The defendants inter alia contended that the defendant No. 1 did not execute any receipt nor did he take back the receipt from the plaintiff. They denied plaintiffs material allegations as contained in paragraphs 2 and 3 of the plaint that the defendant No. 1 had taken the receipt from the plaintiff for doing the needful in favour of the applicant.

(2.) THE plaintiff during the course of the trial made an application under section 65 of the Indian Evidence Act submitting to the Court that the original of the receipt was in possession of defendant No. 1 and 2, and as he was possessed of a photocopy of the original which was supplied to him by the defendant No. 1 he be permitted to lead secondary evidence, prove the execution and contents of the document. Said application was opposed by the defendants. The learned trial Court after hearing the parties rejected the said application. Being aggrieved by the said order, the applicant/plaintiff has filed this revision petition. Submission of learned counsel for the applicant is that the Court below did not apply its mind to the facts of the case and the order passed by the Court below shows absolute non -application of mind. According to him when the original of the document is in possession of the contesting defendants, permission to lead a secondary evidence ought to have been given in his favour. Shri Agarwal and Shri Namdeo, learned counsel for contesting respondents, controverting the submissions made by the applicant, submit that section 65 of Indian Evidence Act cannot be read in isolation, but is required to be read in juxta position with section 66. According to them unless a notice to produce the document is given to the defendants, the plaintiff would not be entitled to obtain permission from the Court. They submit that the Court below was justified in rejecting the application.

(3.) FOR proper appreciation of the controversy, it would be necessary to see sections 63, 65 and 66 of Indian Evidence Act. The said sections read as under: -