SURESHT KUMAR Vs. SMT. CHANDER KANTA

JUDGEMENT

(1.) THIS petition is directed against the order dated 8.9.2009 passed by the learned Civil Judge (Jr. Division), Nahan, District Sirmaur whereby he dismissed the application filed by the Petitioner (hereinafter referred to as the 'Defendant') to lead secondary evidence to prove on record a copy of document of Exchange dated 3.6.1977.

(2.) BRIEFLY stated the facts of the case are that the Plaintiff filed a suit for partition as well as for injunction. It is not necessary to give the entire details of the dispute but it would be pertinent to note that the Defendant alleged that a part of the suit land had fallen to his share vide an exchange and such memo of exchange was executed on 3.6.1977. Alongwith the written statement, a photocopy of the memo of exchange was filed and it was clearly stated that the original is with Sh. Bhek Chand. It is not disputed that the Plaintiff derives title from Bhek Chand. The written statement was filed in March, 2005 and it appears that Sh. Bhek Chand also expired in the year 2005. Issues in the suit were framed on 18.8.2005 and the suit was listed for the evidence of the Plaintiff. Thereafter, the husband and General Power of Attorney of the Plaintiff appeared on her behalf. He was duly confronted with the photocopy of the document which was on record but he denied the execution of the sale by Sh. Bhek Chand.

(3.) THE Apex Court in J. Yashoda v. K. Shobha Rani : 2007 (5) SCC 730 has laid down the following principles relating to the admissibility of secondary evidence: