VIJAY CHOUDHARY Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner filed a Civil Suit No.46-A/2003 (Old No. 12A/99) for specific performance of contract to sell the suit property and with the passage of time, it came to be dealt with by the XlXth Additional District Judge, Indore. It is pleaded in the plaint that the parties had entered into a written agreement for sale of the suit property and the total consideration had been paid to the respondent no.2, the defendant in the suit. After the execution of the agreement, the original had been retained by the said respondent and a plain copy was given to the petitioner. It was set forth that the transaction has been mentioned by the respondent no.2 in the relevant income tax return. The copy of the plaint has been brought on record as AnnexureP/1.

(2.) In the written statement filed by the defendant, he did not dispute the receipt of the amount but denied the fact of any agreement between the parties having been executed. After commencement of recording of the evidence of the plaintiff, as the original of the document was retained by the defendant, the plaintiff- petitioner submitted an application under Section 65 of the Evidence Act for adducing secondary evidence in respect of the documents mentioned in the application. Copy of the said application has been brought on record as AnnexureP/5. An objection was filed by the respondent no.2 opposing the said application. The learned trial Judge upon hearing the parties allowed the application under Section 65 of the Evidence Act by order dated 17.7.01 contained in AnnexureP/7.

(3.) Being aggrieved by the aforesaid order, the second respondent herein preferred a revision before the High Court at Indore Bench on 23.7.01 forming the subject matter of Civil Revision no.748 of 2001. After the Code of Civil Procedure was amended with effect from 1.7.02, the defendant-respondent withdrew the civil revision with liberty to file a review application. The order passed in civil revision has been brought on record as Annexure P/9.