PARSHOTAM DASS GOEL Vs. PUNJAB NATIONAL BANK

JUDGEMENT

(1.) PETITIONER -defendant has assailed the lower Court's impugned order dated 1. 12. 1995 whereby the plaintiff-bank is allowed to adduce secondary evidence with regard to an agreement of guarantee dated 5. 3. 1986 executed by Parshotam Dass Goel, the petitioner. Affidavit of Parshotaam Dass Goel, agreement of guarantee dated 5. 3. 1986 executed by Dharam Pal Arya and Smt. Sundehri Devi and affidavit of Dharam Pal son of Kishan Chand. This civil suit is filed by the bank against the borrowers and these guarantors.

(2.) PETITIONER 's learned counsel valiently argued that the plaintiff-bank has not adduced any evidence before the lower Court that these aforementioned documents were executed by the aforementioned persons in favour of the bank and further that these documents are lost. No issue was framed, no evidence was recorded and still plaintiff-bank was allowed to lead secondary evidence with regard to these documents.

(3.) IN my considered view, these contentions are preposterous. In Sham Lal's case (supra), a single Bench of this High Court has held that no issue was framed by the trial Court on the point whether or not the secondary evidence of document be permitted. In Shanti Devi's case (supra), single Bench of this High Court has held that before direction to adduce secondary evidence could be given, party must prove loss of original document as contemplated Under Section 65 clause (a) read with Section 66 of the Evidence Act. There cannot be any dispute with the principles laid down in these authorities, but an issue can be framed only when the point is controverted by the opposite party at that stage.