NATHU RAM AND OTHERS Vs. SUDHIR KUMAR PURI

JUDGEMENT

(1.) THE defendant -petitioners have filed this revision petition against the order of the trial Court dated February 10, 1981, whereby application filed on behalf of the plaintiff for permission to lead secondary evidence was allowed.

(2.) THE plaintiff has filed a suit for the recovery of Rs. 55,000/ - During evidence he relied upon a dissolution deed which was said to in possession of the defendants. Since the defendants failed to produced the same, an application dated November 27, 1981 was made for permission to lead secondary evidence. This application was opposed on the half of the defendants on the ground that they are not in possession the said document as alleged by the plaintiff. Moreover, in the (sic) litigation between the parties under Section 20 of the Arbitration which was decided on March 10, 1980, the said dissolution -deed was placed on the record, but the same was not allowed to be admitted in evidence as the Court came to the conclusion that the deed of dissolution was not duly stamped and on that account was not admissible in evidence. Thus the original not being admissible in evidence, no secondary evidence could be led to prove such a document. The trial Court after hearing the arguments on both the sides allowed the application of the plaintiff as it was of the opinion that the original dissolution deed appears to be in possession of the defendants.

(3.) ON the other hand Learned Counsel for the respondent submitted that the order passed earlier between the parties under Section 20 of the Arbitration Act is not res judicata and is thus not binding on them. In any case it was submitted that the dissolution -deed, the copy of which is sought to be proved in the trial Court, is a primary evidence as contemplated under Section 62 of the Evidence Act. According to the Learned Counsel the said document purports to be signed by all the parties concerned and even if it is proved to be under stamped, the plaintiff is entitled to prove the same after paying deficiency in the stamp duty. In support of this contention he relied on Hita Lal v. Gian Singh and Company and others, A.I.R. 1951 P&H. 441 and Kruttivasa Padhy v. Malati Padhani : A.I.R. 1959 Ori 113.