MANGAT RAM Vs. PRABHU DAYAL

JUDGEMENT

(1.) This is a revision petition directed against the order dated 15.1.2002 passed by the Civil Judge (Junior Division), Karnal dismissing the application of the defendant/petitioner seeking permission to lead secondary evidence. It was asserted that there was a report submitted on 27.5.1998 by Jai Bhagwan, Kanungo after inspection of the site of the land wherein it was pointed out that Defendant -Petitioner was in cultivating possession. Further, averments in the application were that clerk concerned from the office of the Deputy Commissioner, Karnal was summoned alongwith original application dated 1.5.1998, order passed by the Deputy Commissioner, Karnal dated 1.5.1998 on that application and order dated 4.5.1998 passed by the Tehsildar, Nilokheri and report of Jai Bhagwan, Kanungo dated 17.5.1998. It was reported that the original application, orders and report of Kanungo dated 27.5.1998 could not be traced out. Defendant/petitioner has pleaded that photocopy of the report be permitted to be proved as secondary evidence. It was in this situation that an application for leading secondary evidence was filed.

(2.) The Civil Judge dismissed the aforementioned application by recording the following order : -

(3.) Shri Vikram Singh, learned counsel for the defendant/petitioner has argued that once the loss of document is proved then in pursuance of the provisions of Sec. 65 of Indian Evidence Act, 1872, the Court is obliged to allow adducing of secondary evidence. He further submitted that once the report has come that documents were not traceable then it has to be presumed that those documents which were summoned have been lost or destroyed. For this proposition, he placed reliance on a judgment of this Court rendered in the case of Vardan Feed Mills v/s. S.S. Zombade, (2001) 128 P.L.R. 791 (S.C.). He further contended that proceedings under Sec. 145 Code of Criminal Procedure (for brevity, the Criminal Code) were undertaken, which would prove that report of the Kanungo Jai Bhagwan dated 27.5.1998 was relied upon in those proceedings.