SUGREEVA PRASAD DUBEY Vs. SITARAM DUBEY

JUDGEMENT

(1.) THE question raised in this petition is whether in secondary evidence, photo copy of the document, original of which is lost and was inadmissible in evidence, can be permitted ?

(2.) THE short facts of the case are that the petitioners are defendants in Civil Suit No. 69-A/1997 pending before Civil Judge Class-I, Sehora. Both the parties are real brothers and dispute is in respect of partition of family property. It is alleged that the father of parties Mooratlal executed a deed in the nature of family settlement on 7-6-1994. The photo-copy of the aforesaid document is filed in the record. It is alleged that the original document was obtained by plaintiff Sitaram from defendant No. 1 Sugreeva Prasad on the pretext that after consultation with his sons, he will settle the matter. Thereafter Sitaram has not returned the document to the defendants. The defendants have also issued a notice to the plaintiff to produce the document, but the plaintiff has not produced the original document. Now he has taken a stand that the original document is not in his possession. In the circumstances, the document of family settlement, photo-copy of which is on record be permitted to be adduced in secondary evidence. The plaintiff contested the aforesaid application on the ground that there was no family settlement between the parties. The plaintiff did not ask for original deed, nor he was given the deed by the defendant Sugreeva Prasad, the document is not in possession of the plaintiff. In fact the document is forged and can not be permitted in evidence by way of secondary evidence. The Trial Court by the impugned order (Annexure P-8), dated 6-7-2003 rejected the application filed by the petitioners, aggrieved by which this petition has been filed by the defendants.

(3.) LEARNED Counsel for petitioners submits that the document is admissible in evidence and secondary evidence of the document may be adduced. The aforesaid document may be received in secondary evidence for collateral purpose. If the Trial-Court is of the view that the document is insufficiently stamped, petitioners are ready to pay the deficit stamp duty. This petition may be allowed and the impugned order be quashed.