MANI RAM Vs. DAYA KISHAN

JUDGEMENT

(1.) This revision petition filed under Article 227 of the Constitution prays for quashing order dated 11.2.2004 passed by the Addl. Civil Judge (Jr. Division), Palwal holding that the defendant-petitioner was not entitled to adduce secondary evidence of receipt dated 30.6.1977 by tendering a photocopy thereof. The principle reason recorded by the learned Civil Judge for declining the application to lead secondary evidence is that no mention of the receipt was made in the pleadings by the defendant-petitioner.

(2.) The plaintiff-respondent had filed a civil suit for permanent injunction claiming that he was owner in possession of Gair Mumkin fully described in the title of the suit. It was alleged that the suit property is being used by the plaintiff-respondent and the defendant-petitioner has no right. On that basis a decree for injunction to restrain the defendant-petitioner from interfering in the possession of the plaintiff-respondent was prayed.

(3.) In the written statement filed by the defendant-petitioner, it was claimed that the plaintiff-respondent was not the owner or in possession of the suit property which was owned and possessed exclusively by the defendant-petitioner being a bona fide purchaser from the father of the plaintiff-respondent, more than 20 years ago. However, no mention was made with regard to any document in the shape of a registered sale-deed or informal receipt. During the pendency of the proceedings, the defendant-petitioner filed an application alleging that the original receipt executed by the father of the plaintiff-respondent, Nathi, showing that Rs. 20,000/- was paid to him on 30.6.1977, was lost. In support of the averment a DDK dated 28.8.2003 was relied upon. A photostat copy of the receipt was produced which showed that it was not a registered document. The learned Civil Judge has dismissed the application by observing that no plea with regard to execution of receipt dated 30.6.1977 was set up although the loss of the aforementioned document was not required to be established in absolute term. On the aforementioned basis that the document was not disclosed in the written statement, the Civil Judge has dismissed the application for adducing secondary evidence.