RAM KUMAR Vs. BALJIT SINGH

JUDGEMENT

(1.) CHALLENGE in the present revision petition filed under Article 227 of the Constitution of India by the petitioner/plaintiff is to the order dated 28.7.2012 whereby the Additional Civil Judge (Senior Division), Ratia has declined the application filed for granting permission to lead secondary evidence of the pronote and receipt dated 22.2.2006.

(2.) THE reasoning given by the trial Court is that the plaintiff would have to first prove its existence and the circumstances of its loss then only he could be given permission to lead secondary evidence, which could only be led in consonance of what has been provided under Section 63 of the Indian Evidence Act, 1872 (hereinafter referred to as "the Act"). At the time of filing of the suit, the plaintiff had only placed on record the photocopy of the pro -note and the receipt. Since the original had been lost on the date the case was fixed for plaintiff's evidence after availing three opportunities, the original had never been produced as required under Order 13 Rule 1 CPC. The existence of the document in question was held not to be proved and the same could not be admitted into evidence.

(3.) THE Civil Suit for recovery of Rs. 4,08,000/ - whereby principal amount was Rs. 3,00,000/ - and Rs. 1,08,000/ - was the interest element was filed on 31.3.2009 on the strength of the pro -note and receipt dated 22.2.2006. The respondent/defendant took various pleas including the plea of limitation but on merits never specifically denied the existence of the pro -note and the receipt in question. It was his case that the consideration had never been passed and the pro -note had been got fabricated by the plaintiff in collusion with the so called witness and in collusion with the scribe. Accordingly, the same was held out not to be binding upon him. It was further alleged that the plaintiff and defendant had been friends and used to consume liquour and in drunkard condition he might have got his signatures (which alleged fact had also been not admitted) on the alleged pro -note. The alleged pro -note thus was denied being illegal, fabricated and not enforceable.