TIKKA RAM Vs. JAYANTI PARSHAD

JUDGEMENT

(1.) This revision petition under Section 115 of the Code of Civil Procedure is directed against the orders dated 11th October, 1984, of the learned Subordinate Judge, First Class, Karnal, allowing the defendants to lead secondary evidence to prove two mortgage deeds. It has been filed in the following circumstances.

(2.) The plaintiff-petitioner had filed a suit for declaration that the mortgage deeds purported to have been executed by him in favour of the defendant were fictitious and invalid. During the pendency of the suit, the defendant filed an application for leading secondary evidence to prove two mortgage deeds executed by the plaintiff, Tikka Ram in favour of Karam Singh and Giani. Giani and Karam Singh were examined by the defendant, and they stated they were not in possession of the mortgage deeds executed in their favour by Tikka Ram. At this stage, the trial Court recorded the statement of Tikka Ram, plaintiff. He stated that the said mortgage deeds were not in his possession. The learned trial Judge allowed the application and permitted the defendant to lead secondary evidence. This order has been challenged in the present revision petition.

(3.) Shri H.L. Sarin, learned counsel for the petitioner, has argued that the mandatory provisions of Section 65 of the Indian Evidence Act (hereinafter referred to as 'the Act') had not been complied with before ordering the examination of secondary evidence. The submission of the learned counsel cannot prevail. In this case, there has been a substantial compliance with the spirit of Section 65 of the Act. The mortgage deed could ordinarily be either in the custody of the mortgagees, Giani and Karam Singh, or in the custody of the mortgagor, Tikka Ram. Karam Singh and Giani had examined, and they stated that the mortgage deeds were sought to be proved were not in his possession or custody. The plaintiff had been given ample opportunity to produce of the document. My decision in Tarlok Singh and others v. Dilbagh Rai and others, 1985 1 RCJ 81, does not in any way help the petitioner. In that case, the statement of the defendant had not been recorded by the trial Court before deciding the question of permitting the production of secondary evidence. The defendant has not been questioned about the fact as to whether he was in possession of the documents in question. It was in that context that it was observed that it was imperative for a party to issue notice under Section 65 of the Act to produce the documents in question before asking for an opportunity to lead secondary evidence regarding the execution of the same. The same principle was enunciated in Subbarayulu Naidu and others v. Vengama Nadu, 1930 AIR(Mad) 742 and this authority is also of no help.