P K GUPTA Vs. VARINDER SHARMA

JUDGEMENT

(1.) This is a revision petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the order dated 4-10-2001 passed by the Civil Judge (Senior Division), Kurukshetra has dismissed the application of the plaintiff-petitioner seeking permission to prove the agreement dated 13-4-1996 by adducing secondary evidence in place of the original.

(2.) Brief facts of the case which led to the filing of the present revision petition are that the plaintiff-petitioner has filed a civil suit No. 336 of 18-9-1997 for recovery of Rs. 30,000.00 as principal sum plus interest at the rate of Rs. 12% per annum in terms of agreement dated 13-4-1996. It is averred that the plaintiff-petitioner entered into a consultancy agreement with the defendant-respondent for setting up a unit of zinc metal which was to produce zinc metal made from zinc ash. The unit was to be set up at Kurukshetra. A consultancy agreement is alleged to have been executed between the plaintiff-petitioner and defendant-respondent on 13-4-1996 at Kurukshetra and the same is alleged to be signed by both the parties in the presence of the witnesses. According to the agreement, the defendant-respondent was to prepare the project report and submit the same to the financial institution for sanctioning of loan and also get the necessary approval and clearance from the Government authorities. According to the averments, it was further agreed that if the loan was not sanctioned by the financial institution then defendant-respondent was to be entitled for an amount of Rs. 5,000.00 only. No sanction was accorded by Haryana Financial Corporation. A total amount of Rs. 35,000.00 having been paid, the plaintiff-petitioner asserted that he was entitled to get the refund of Rs. 30,000.00 from the defendant-respondent as per the terms of the agreement. Along with the plaint a photostat copy of the agreement was enclosed. In the written statement the case set up by the defendant-respondent is that the plaintiff-petitioner has forged and fabricated the consultancy agreement dated 13-4-1996 and has deliberately produced a photocopy of the same in the Court as evidence. It is asserted that the plaintiff-petitioner is liable to be criminally prosecuted under the provisions of Indian Penal Code. According to the averment made in the written statement, an agreement is alleged to have been signed by the parties in May/June 1996 at Kurukshetra which was witnessed by one Shri Kulbhushan Gupta of Sangrur a common friend of both the parties. It was further asserted that the aforementioned agreement was neither attested by any Notary Public nor the defendant-respondent ever signed the register of Shri Virinder Garg, District Notary who is alleged to have attested the consultancy agreement. It is vehemently denied that an agreement was executed on 13-4-1996 or 30-4-1996. Further averments have been made that the original agreement executed in May/June 1996 was kept by the plaintiff-petitioner and the photostat was not handed over to the defendant-respondent on the ground that photostat machine shops were closed as it was already 9.00 p.m. on the date of execution of agreement. The plaintiff-petitioner had promissed to supply photostat copy of the agreement on his visit to Chandigarh. Even the terms and conditions of the original agreement alleged to be executed have been enumerated in the written statement.

(3.) During the course of proceedings, the defendant-respondent filed an application under O. VII, R. 14 of the Code in which prayer for production of the original alleged agreement was made and a direction was sought that the plaintiff-petitioner be asked to produce the same. In the reply submitted by the plaintiff-petitioner to the aforementioned application it was asserted that the original agreement has been kept by the defendant-respondent on the pretext that the same would be required in connection with the sanctioning of loan and implementation of the project. It was further asserted that a copy of the original was supplied by the defendant-respondent to the plaintiff-petitioner. It was duly attested by the District Notary on 13-4-1996. Thus, it was alleged that the original was in possession of the defendant-respondent and he should produce the same before the Court. The defendant-respondent filed a re-joinder asserting that the photostat copy of the agreement dated 13-4-1996 is not genuine and is a photostat of forged document. He has further explained that the contents of the original document alleging that it contained only 2 pages and there were two stamps of the Notary Public on the first page and the agreement was witnessed only by one witness, namely, Shri Kulbhushan Gupta. He reiterated his stand which he has taken in the written statement. It was thereafter that application has been filed by the plaintiff-petitioner to prove the agreement dated 13-4-1996 by adducing secondary evidence. The Civil Judge dismissed the application by recording the following reasons : "After careful consideration of the arguments of both the parties, it is held that admittedly the applicant/plaintiff has failed to prove that the original agreement was either with the defendant/respondent or it has been lost. A perusal of the plaint shows that in the plaint in para No. 2 the applicant/plaintiff while relying upon the agreement dated 13-4-1996 pleaded that the photo copy of the agreement is enclosed with the plaint. It was nowhere pleaded in the original plaint that the original agreement was handed over to the defendant/respondent and only a attested copy by Notary Public was handed over to the plaintiff. Not even this, later on this plea was taken by the applicant/plaintiff when the defendant/respondent moved an application for directing the plaintiff/applicant to produce the original agreement. At the same time, it is specifically pleaded by the respondent/applicant that the original agreement is very much with the plaintiff/applicant and he has intentionally concealed the same and put forward a false story that the original agreement is with the defendant/respondent. On the other hand, the applicant/plaintiff has forged and fabricated another document of the same date by fraud and forgery and the copy of the same has been produced and original of the same is also concealed to take the benefit of the wrong assertion. In these circumstances, the question arises once the fact that whether the original agreement was with the defendant/respondent is not proved by the applicant/plaintiff, how the applicant/plaintiff can be allowed to prove that document by way of secondary evidence. In Sukhinder Kaur's case supra as well as in Shanti Devi's case Supra, our own Hon'ble High Court of Punjab and Haryana held that in terms of S. 65(a) read with S. 66 of the Evidence Act, the permission to adduce secondary evidence cannot be given to a party unless the party proves the loss of the original document or other circumstances mentioned in that clause and where this fact is missing, the application for secondary evidence is liable to be dismissed. Similar are the facts in hand. Applicant/plaintiff has failed to prove that the original document was with the defendant/respondent. On the other hand, the pleadings of the applicant/plaintiff itself shows that the original document i.e. agreement is with the applicant/plaintiff and he has put forward a false and concocted story regarding custody of the same with the defendant/respondent.