SOM PRAKASH Vs. PRABHATI LAL AND ANR.

JUDGEMENT

(1.) This revision petition is against order dated, May 22, 1990 passed by the trial court dismissing application of the Plaintiff -Petitioner for producing secondary evidence of two documents, one gift deed dated May 19, 1909 and the other sale deed dated January 1, 1924. The dispute between the parties relates to a passage 71/2 feet wide and the Plaintiff claims injunction that the defendants Prabhati Lal and others be restrained from interfering with that passage.

(2.) Learned Counsel for the Petitioner has argued that alongwith the application for producing secondary evidence, affidavit of the Petitioner was filed to the effect that the aforesaid documents in original were not traceable and the Petitioner had no knowledge about their whereabouts. Since they were old documents, certified copies from the office of the Sub Registrar were produced. Copy of the affidavit has been produced during arguments . On the other hand, learned Counsel for the Respondents has argued that it was November 12, 1987 that the Plaintiff was first called upon to lead his evidence. Inspite of six opportunities being given, no such evidence was produced or prayer was made for proof of these two documents. This application was filed some time in January, 1989 to delay the proceedings, which was rightly by the trial court. His further contention is that unless and until loss of the original documents is proved, secondary evidence cannot be allowed. Reliance has been placed on the decision of this Court in Hira and Anr. v/s. Smt Gurbachan Kaur, 1988 (2) PLR 173. That was a case where no reliance was placed on the documents for which secondary evidence was to be produced in the plaint and no affidavit regarding loss of documents was produced. The ratio of the aforesaid decision cannot be applied to the case in hand, as at the initial stage reliance was placed on these two documents and the trial court granted interim injunction. Thus, it cannot be said that the defendants were taken by surprise when application for secondary evidence was filed.

(3.) Sec. 65 of the Evidence Act requires loss of documents to be produced before allowing secondary evidence. Loss can be proved by different modes, one of them being that the original is not traceable. Present is a case where the Plaintiff never came into possession of these two old documents and as per his affidavit the same are not at all traceable. To assert that his vendor must be possessing these documents is of no consequence. If affidavit is acted upon and it is held that the documents are not traceable, the loss is established . The two documents sought to be produced being thirty years old a presumption could be drawn regarding their genuineness. In the peculiar circumstances of the present case this Revision Petition is allowed. The impugned order is set aside and secondary evidence is permitted to be brought on record. Since the application for secondary evidence was filed at a belated stage the defendants can be suitably compensated for this. The Petitioner -Plaintiff shall pay Rs. 500/ - as costs for this delay. Costs be paid in the trial court. Parties through their counsel are directed to appear before the trial court on March 18, 1991. The trial court would expedite the case.