THAKUR DAWARA Vs. BALVIR KAUR

JUDGEMENT

(1.) The petitioners have filed this revision petition under Article 227 of the Constitution of India for setting aside order dtd. 24/7/2019 (Annexure P-7) passed by the Civil Judge (Junior Division), Amloh, whereby their application for leading secondary evidence has been dismissed.

(2.) The facts leading to the filing of the present petition are; that the petitioners-plaintiffs filed a suit for declaration of entries in the revenue record in favour of the respondents as null and void, claiming that the petitioners-plaintiffs are the owners in possession of suit property. Amongst other, one of the ground taken by the plaintiffs is that earlier also, the earlier Mahant of the plaintiffs-Thakur Dawara had filed a suit for possession against the predecessors-in-interest of some of the present respondents. That suit was decreed in favour of the present petitioners-plaintiffs. The said decree was upheld by the appellate court in that case. A regular second appeal No. 3544 of 1985 titled as Sant Singh and another versus Dev Raj and another, was also preferred by the defendants of that suit; before this court. However, that regular second appeal (RSA) was also dismissed by the High Court vide order dtd. 20/12/1985. It is the case of the plaintiffs-petitioners that the certified copy of the said order passed by the High Court in RSA was available with the plaintiffs, however, the same has been lost. But the photocopy of the certified copy of that order passed by the High Court is available with them. An application was earlier moved for leading the additional evidence which was permitted by the trial court vide order dtd. 7/5/2019. Although, leading of additional evidence was permitted by the trial court, however, when the petitioners sought permission to lead the copy of the above said order of High Court passed in RSA No.3544 of 1985, by way of secondary evidence, the permission to lead secondary evidence has been declined to the petitioners-plaintiffs vide order dtd. 24/7/2019. It is against that order passed by the trial court that the present petition has been filed.

(3.) Arguing the case on behalf of the petitioners, it is submitted by the counsel that proceedings of the regular second appeal, qua which the document is sought to be produced by way of secondary evidence, was between the same parties or their predecessor-in-interest or their immediate family members. Earlier the litigation was with two sons of Gurdial Singh including Sant Singh, who was defendant in the present suit as well. Subsequently, the Patwari, in collusion with LRs of one of those sons and the other sons of Gurdial Singh, changed the entries in the revenue record in their favour. Hence, the present suit had become necessary and the same was filed against family members of Gurdial Singh. Therefore, the order passed in RSA is relevant for the adjudication of the present suit as well. The counsel has further submitted that the certified copy of the judgments of the Trial court and the appellate court in the earlier proceedings have duly been led in evidence before the trial court. It is only the order passed by this court in the RSA arising from those proceedings which the petitioners are praying to lead in evidence. The certified copy of the judgment/order passed by the High Court is otherwise admissible in evidence per se. Earlier the petitioners were having the certified copy of the order of the High Court passed in RSA. However, the same was lost and only photostat copy of the same was left with the petitioners. The petitioners applied to the High Court to get the certified copy again. However, the office of the High Court did not supply the same, rather gave to the petitioners in writing that the record of the said RSA had been destroyed in a fire incident. The writing from the High Court has been submitted to the Trial court in original. Hence, it is submitted that since the original has been destroyed in fire in the office of the High Court and the earlier certified copy has been lost by the petitioners and further, only the photocopy of the certified copy is available with the petitioners, hence the same has been sought to be led in evidence. Since it is copy of a document per se admissible in evidence under the Indian Evidence Act, therefore, the same is permissible to be led in evidence as secondary evidence. The counsel has relied upon the judgment of the Supreme