BISHAN SINGH Vs. GURINDER SINGH

JUDGEMENT

(1.) Present petition is challenge to the order dated 19.1.2015, passed by learned Additional Civil Judge (Senior Division), Malerkotla, whereby application filed by defendant No.2-Baldev Singh, seeking permission to prove agreement dated 14.6.2010 by way of secondary evidence, was allowed.

(2.) Revisionist has challenged the said order on the ground that petitioner's evidence had already been concluded and at that stage, application was filed for issuance of direction to him and respondent No.1 to produce on record original agreement dated 14.6.2010. Present petitioner filed reply inter-alia taking the plea that no such agreement was ever executed and the application be dismissed. Respondent No.2- Baldev Singh moved an application for granting permission to prove agreement dated 14.6.2010 by way of secondary evidence and the Court below allowed the same without going into the fact that even there was no such pleading in the written statement that such an agreement was ever executed and respondent No.2 cannot be allowed to lead secondary evidence to prove a fact which has not been pleaded as yet. In support of his arguments, reliance was placed upon the judgment rendered by the Division Bench of Chhattisgarh High Court in case United India Insurance Co. Ltd. v. Ranipati Kunwar & Others,2013 2 AICJ 153, wherein a view was taken that evidence, which is beyond pleading, is not permissible and on same point reliance was placed on judgment rendered by the Rajasthan High Court in case Subhash Sharma v. Chhinna Ram and Others, 2010 88 AllIndCas 438.

(3.) While arguing on this point, learned counsel for respondent No.2 submitted that written statement was filed on 28.4.2010, whereas agreement for which permission was sought to be proved by way of secondary evidence is dated 14.6.2010 i.e. after filing of the written statement. So, there was no question of taking such a plea in the written statement. More so, PW.2-Swarn Singh had admitted the execution of agreement itself and as such there was no question of dismissal of application for leading secondary evidence and the order passed by the Court below does not require any interference. In support of his arguments, learned counsel for respondent No.2 placed reliance upon the judgments rendered by the co-ordinate Benches of this Court in cases Anupam Jain v. Smt. Kulwant Gupta (Civil Revision No. 2991 of 2012, decided on 9.3.2015) and Prema v. Rajbir,2011 2 LAR 603, wherein view was taken that admissibility or otherwise of the document is to be seen by the Court concerned at the time of final decision and that is not the deciding factor for allowing or disallowing of application for leading secondary evidence and present petition be dismissed.