ISHWAR SINGH Vs. HAZI MOHD ASKIN

JUDGEMENT

(1.) FACTS necessary for the disposal of this revision petition may be briefly stated as under : The petitioner instituted a suit for specific performance in the Civil Court at Faridabad with the averments that he entered into an agreement in writing on April 21, 1931, with defendant" No. 1 for the purchase of plot No. 1 in Sector 15-A, Faridabad, at the rate of Rs. 60/- per square yard. He gave Rs. 20,000/- in advance and the balance was to be paid at the time of execution of the sale-deed on a specified date. The date for execution of the sale deed was extended from time to time On June 21, 1981, the plaintiff advanced another sum of Rs. 10,000/- against a receipt in writing. Defendant No. 1 made an endorsement about the same on the back of the original agreement dated, April 21, 1981. The plaintiff appears to have filed photostat copy of the agreement with the suit. The suit is being contested by the defendants. In the written statement filed by defendant No. 1, in reply to the relevant paragraph 2, defendant No. 1 denied having agreed to sell the land in suit at the rate alleged under the stated agreement of sale dated, April 21, 1981. Having denied the agreement of sale in general terms, the defendant proceeded to add "the plaintiff has materially altered the impugned agreement of sale by totally substituting the first page;" On July 31, 1989, the plaintiff made an application for leading secondary evidence in the form of a photostat copy of the agreement: dated April 21, 1981. It was stated that the original agreement of sale and the receipt regarding advance payment had been lost in between village Ajrondha and the Courts, regarding Which the plaintiff had lodged a report with Police Station Central, Faridabad. The application was opposed and by the impugned order the learned Senior Subordinate Judge rejected the application. Aggrieved by the order, the plaintiff has preferred this revision.

(2.) LEARNED counsel for the respondents argued that the plaintiff failed to produce the original agreement with the plaint even though the agreement was supposed to be in plaintiff's own possession. The clear inference, according to the learned counsel, was that no such document was in possession of the plaintiff and he was marking time to manufacture a document. I find no substance in this contention. There was not only a categorical assertion in the plaint about the agreement being in writing, there was no specific denial of defendant No. 1 having executed the agreement dated April 21, 1981. A plea, although, in the alternative, was that the plaintiff had materially altered the agreement relied upon by him. There are reasons to believe that the plaintiff instead of placing the original agreement on record as required under Order 7, Rule 14 of the Code of Civil Procedure has placed on record a photostat copy thereof. From the brief made available to me at the time of the hearing, I find that there is an application moved by defendant No. 2 before filing the written statement to the effect that the photostat copies filed by the plaintiff with the plaint were not legible and that the plaintiff be directed to place the original documents on record, to enable the defendant No. 2 to file a written statement. Production of secondary evidence is different from the evidentiary value to be attached to proposed secondary evidence and the two things have to be dealt with distinctly. The order under revision shows that the trial Court has mixed up the two things and has pre-judged the evidentiary value to be attached to the proposed secondary evidence. This is altogether erroneous. For evaluating the evidentiary value of the proposed secondary evidence, all relevant facts and circumstances, which may be brought on record by the parties, have to be taken into consideration. It may also be pointed out that Rule 14 of Order 7 does not contain an absolute power against production of documents in original at a subsequent stage. In fact, Rule 18 deals with the situation where such documents are sought to be produced at a later stage. This is possible with the leave of the Court. The general rule is to permit evidence to be led rather than to shut out evidence at the threshold?

(3.) LEARNED counsel for the respondents also argued that the application for secondary evidence was vague, in that the date on which the original documents were lost was not mentioned nor was copy of the FIR. produced therewith. No doubt, the date on which the original document was allegedly lost has not been mentioned but the same must have been stated in F. I. R. and no opportunity seems to have been given to the petitioner to lead evidence in regard to the application, so that the plaintiff was prevented from producing the F I. R. lodged in this connection. After bearing learned counsel for both the parties, at the motion stage, the revision petition is allowed, the order of the trial Court dated October 7, 1989, is set aside and the plaintiff's application for leading secondary evidence is allowed.