ANUPAM JAIN Vs. KULWANT GUPTA AND ORS.

JUDGEMENT

(1.) THE petition is against the rejection of a document tendered as secondary evidence before the trial court. This is a suit for specific performance and the plaintiff wanted to rely on the fact that the plaintiff was present on 03.05.2005 at the Sub Registrar, Barwala at 9 AM and the defendant had not come. The copy of affidavit prepared before the Sub -Registrar and got noted by him with an endorsement with the official seal was sought to be tendered as evidence. It was objected by the respondent on a plea that the document was not referred to in the plaint and the document as secondary evidence cannot be brought. The court has accepted the objection and the plaintiff who could not produce the copy of the document is before this court on revision.

(2.) IN the suit for specific performance, the proof of readiness and willingness is a most crucial issue and if the plaintiff wants to tender evidence and that he was so willing and that he was even present before the Sub -Registrar on the date when he was required to be present, I would take that to be the most crucial evidence. If there is an averment regarding the readiness and willingness, how that readiness is to be proved is invariably a matter of evidence. The fact that the plaintiff did not aver in the plaint that he had the affidavit of his presence noted and marked as very material, for, as I have already said that the proof of readiness and willingness is a matter of evidence. If the document contains an endorsement of the Sub Registrar with his seal, the copy produced with the seal must be received if the plaintiff states that the original was missing. The learned counsel for the respondent relies on a judgment of the Supreme Court in Smt. J. Yashoda Verus Smt. K. Shobha Rani - : 2007(1) RCR 466 that if the original itself is found to be inadmissible through failure of the party, who files it, to prove it to be valid, the said party shall not be entitled to introduce secondary evidence of its contents. The plaintiff has tendered the affidavit along with the copy of the document said to be relied on by him where he has stated in para 4 of the affidavit as follows: -

(3.) IN this case, the plaintiff has undertaken an exercise of what is a prevalent practice here of filing an affidavit for tendering secondary evidence. I would allow the court to consider the secondary evidence even without such an affidavit seeking for production of secondary evidence in the light of the law laid down by this court.