TAWAR SINGH Vs. RANJIT SINGH

JUDGEMENT

(1.) APPLICANT -Defendant has directed this Revision against the order dated 3.7.1999 rendered by Addl. District Judge, Indore in Civil Suit No. 74/86 thereby rejecting application filed by the applicant u/s. 65 of the Evidence Act for granting permission to lead secondary evidence with regard to the copies of the Promissory Notes Ex. B -1, B -2, B -3 filed on behalf of the applicant. Briefly stated the facts of the case are one Ranjitsingh since deceased brought a suit for possession against the petitioner from the top floor of the house bearing Municipality House No. 11, situated at Meerapath, Indore. Non -applicants Nos. 1 to 3 are the LRs of the deceased -plaintiff Ranjitsingh. In the said suit, the applicant -defendant contended that he is in possession of the portion of the suit house on the basis of the past contract with the owner of the suit house one Smt. Maltibai Holkar. He contended that in part performance of the said contract with Maltibai, the petitioner paid Rs. 75,000/ - to the vendor who returned the promissory notes executed by the petitioner in her favour by discharging the same under the signature. The petitioner also contended that more than one lakh rupees were spent in repairs and renovation with the consent of the vendor. As such, the entire sale price was paid to said Maltibai and only formal sale deed remained to be executed but could not be executed due to the death of said vendor Maltibai. In support of his contension, the petitioner filed photocopies of three original promissory notes which were returned to him by deceased Maltibai duly discharged and he was under the impression that he possessed of the originals kept at his house situated in village Berchadathar. Number of years passed in between and the'originals of the promissory notes could not be traced. As such he filed the photocopies of the said promissory notes available with him with an application under Order 13 Rule 2 CPC and also filed an application u/s. 65 of the Evidence Act for permitting him to lead secondary evidence with regard to the alleged original promissory notes which are lost and not traceable. The learned trial Court, by order dated 15.5.1998 dismissed both the applications filed by the petitioner. Aggrieved, the petitioner had filed two separate Revisions against the order disallowing application under Order 13 Rule 2 CPC and application filed u/s. 65 of the Evidence Act.

(2.) THIS Court, in Revision petition No. 664/99, by order dated 24.8.1998 allowed the Revision filed against the order disallowing application under Order 13 Rule 2 CPC and ordered to take the photocopies of the promissory notes on record on payment of Rs. 500/ - cost. Whereas in Revision petition No. 987/98 filed against the order rejecting application u/s. 65 of the Evidence Act, by order dated 23.9.1998 remanded the matter to the trial Court for re -considering the application filed u/s. 65 of the Evidence Act in view of the allowing of the application under Order 13 Rule 2 CPC.

(3.) ON consent, the learned counsel for the parties have been heard on the merits at the stage of admission of this Revision petition. Having heard the learned counsel for parties and on perusal of the impugned order as also the evidence recorded by the trial Court on the application filed u/s. 65 of the Evidence Act, it emerged that the trial Court has committed illegality in appreciating the evidence recorded on the application filed u/s. 65 of the Evidence Act on the point of loss of the original promissory notes from the custody of the petitioner. The learned trial Court, without considering the evidence in the right perspective only on conjuncture and surmises and hypothetical considerations, recorded the findings against the applicant and held that from the evidence it is not proved that the originals of the alleged promissory notes were in possession of the applicant and the said originals are lost or not traceable. U/s. 65 (c) of Evidence Act, the secondary evidence can be permitted to the party on his prayer with regard to the existence, condition or contents of the documents when the Court is satisfied that the originals have been destroyed or lost. In the instant case, in my considered opinion, from the statements of applicant Tawarsingh and his witness Martandrav, prima facie this fact is established that the applicant was possessed of the originals of the said promissory notes of which the photocopies are filed and those originals have been lost or not traceable due to the lapse of time. As such, the Revision filed by the applicant deserves to be allowed.