DILBAG Vs. PAWAN KUMAR

JUDGEMENT

(1.) THE petitioner herein plaintiff before the learned trial Court had instituted a suit against the defendant/respondent herein, wherein in the apt paragraph No. 2 which stands extracted hereinafter, he had averred that an agreement of 11.4.2011 had been executed inter -se the plaintiff and the defendant for the construction of a multi -storied building of Zee -Laborate Company at Village Nihalgarh. However apparently on a reading of the concluding portion of the averments comprised in paragraph 2, there is an occurrence therein of the defendant/respondent herein having rather inaccurately mentioned in the agreement of 11.4.2011 of the defendant/respondent herein wanting the plaintiff/petitioner herein to execute construction of his house at village Nihalgarh. In paragraph 13 of the plaint there is a reiteration of the factum of an agreement of 11.4.2011 having come to be executed inter -se the plaintiff/petitioner herein and the defendant/respondent herein, the original whereof has been averred therein to be in possession of the defendant/respondent herein. The said fact constituted therein stands admitted in the written -statement furnished to it, by the defendant/respondent herein. The effect of the factum of the defendant/respondent herein having admitted the fact of an agreement of 11.4.2011 having come to be executed inter -se the plaintiff/petitioner herein and the defendant/respondent herein and of his being in possession of the original of the aforesaid agreement paves way for an apt inference that the defendant is in possession of the original agreement of 11.4.2011. However, on the strength of the aforesaid inference, it would not be apt to thereupon per -se conclude that the application at hand be allowed by this Court as then it would disturb the findings and conclusions recorded by the learned trial Judge on 30.11.2012 even when the renditions therein have remained un -assailed before this Court. However the persistent emphasis on the part of the plaintiff/petitioner herein of an agreement of 11.4.2011 entered inter -se him and the defendant/respondent herein pertaining to the construction of a multistoried building of Zee -Laborate Company at Village Nihalgarh, stands contested besides repudiated by the defendant/respondent herein in paragraph 3 of his written -statement. The original of the agreement of 11.4.2011 being in possession of the defendant/respondent and the defendant/respondent not producing it constrained the plaintiff/petitioner herein to file applications under Order 7 Rule 14(3) CPC and under Order 11 Rule 14 CPC, for a direction to the defendant/respondent herein to produce the original of the agreement of 11.4.2011. However, the learned trial Court under orders of 30.11.2012 allowed the application under Order 7 Rule 14(3) CPC and dismissed the application under Order 11 Rule 14 CPC. The reason which prevailed upon the learned trial Judge to dismiss the application under Order 11 Rule 14 CPC was anvilled upon the fact that no insistence can be made upon the defendant/respondent to produce the original of the agreement of 11.4.2011 in the face of his having denied the fact of his being in possession thereof. Without for reiteration testing the tenacity of the aforesaid conclusions drawn by the learned trial judge especially when no proceedings have been initiated at the instance of the aggrieved to assail the findings to the aforesaid extent recorded therein, yet prima -facie it appears that the acquiescence of defendant/respondent comprised in his meeting out a reply in his written -statement to the averments constituted in paragraph 13 of the plaint, of his being in possession of the original of agreement of 11.4.2011 rather ought to have garnered an inference that the defendant/respondent herein was in possession of the agreement of 11.4.2011. However, even if the aforesaid inference prima -facie is garnerable therefrom yet it ought not to be carried forward for constraining this Court to on its strength allow the application at hand.

(2.) BE that as it may, subsequently the petitioner herein had instituted an application under Section 65 of the Indian Evidence Act for permission to tender into evidence photocopy of agreement of 11.4.2011 on the ground that the defendant/respondent herein despite his being possessed of its original was omitting to produce it. Moreover, there is an averment in paragraph 4 of the application at hand that the agreement stood attested by Mr. Anil Thakur, Advocate. It is emanable on a reading of the reply furnished by the defendant/non -applicant to the said fact comprised in paragraph 4 of the application at hand that it stands acquiesced to by the defendant/non -applicant. In sequel the defendant/respondent herein does not contest the factum of an agreement of 11.4.2011 having come to be executed inter -se the plaintiff/petitioner herein and the defendant/respondent herein and its having come to be attested by one Mr. Anil Thakur, Advocate. Nonetheless, an acerbic contest exists inter -se the parties at contest qua the factum of an agreement of 11.4.2011 having been executed inter -se them and even if it stands executed inter -se them whether it pertains to the plaintiff/petitioner being obliged to raise construction of a multi -storied building of Zee -Laborate Company at Village Nihalgarh or whether it pertains to the raising of the construction of the house of the defendant/respondent herein by the plaintiff/petitioner herein. The learned Sr. Advocate appearing for the defendant/respondent herein canvases that with the occurrence in the agreement of 11.4.2011 or its concomitantly unraveling the factum of it pertaining to the raising of the house of the defendant herein by the plaintiff/petitioner herein, whereas an averment is made in paragraph 2 of the plaint, of it having come to be executed inter -se the parties at contest for the raising of a multi -storied building of Zee -Laborate Company at Village Nihalgarh by the plaintiff/petitioner herein, naturally when the averment in paragraph 2 of the plaint is incompatible with the recitals in the agreement of 11.4.2011, as such, he contends that the adduction into evidence of a photocopy thereof even if with the permission of the court, would not prove the contents of paragraph 2 of the plaint, rather the evidence as proposed to be adduced at the instance of the plaintiff/petitioner herein would be not germane to besides not compatible to the pleadings existing in paragraph 2 of the plaint. As such, he contends that when a concert on the anvil of the photocopy of the agreement has been made to prove an averment not compatible to the recital in the agreement of 11.4.2011, as such, the evidence aforesaid is both inadmissible as well as not relevant to prove the fact as averred in paragraph 2 of the plaint. However, the aforesaid contention as meted out by the learned counsel for the defendant/respondent herein for ousting the application at hand may not at this stage be subjected to an incisive scrutiny qua its probative worth as well as tenacity especially when the plaintiff/petitioner herein, in the concluding portion of paragraph 2 of the plaint had enunciated therein the factum that the defendant/respondent while executing it, had erroneously mentioned therein of the plaintiff/petitioner herein being obliged to raise construction of the personal house of the defendant/respondent herein, whereas as a matter of fact he had drawn an agreement of 11.4.2011 with the plaintiff/petitioner herein qua the construction by him of a multi -storied building of Zee -Laborate Company at Village Nihalgarh. Even if a clarification in the above regard exists in the concluding portion of paragraph 2 of the plaint qua the contents and tenor of the agreement of 11.4.2011, in sequel its adduction into evidence subject to the hereinafter referred fetters may prove the averments comprised in paragraph 2 of the plaint. In aftermath, it is sagacious to, at this stage for the reasons recorded hereinafter permit its adduction into evidence subject to all just objections qua its being valid and due execution being open to be taken by the respondent/defendant herein at the time of its adduction. Moreover, the learned trial Court shall subject to evidence as may come to be adduced before it, at the instance of the parties at lis, shall thereupon also construe whether the evidence as is forthcoming does portray whether it is both relevant as well as admissible for facilitating it, to render an executable decree qua the factum whether the agreement of 11.4.2011 as proposed to be adduced into evidence by way of secondary mode with the permission of the court, pertains to the raising at the instance of the plaintiff/petitioner herein the personal house of the defendant/respondent herein or whether subject to evidence as may come to be adduced portraying that it as a matter of fact is an agreement entered into by the defendant/respondent herein with the plaintiff/petitioner herein for the raising of a multi -storied building of Zee -Laborate Company at Village Nihalgarh, besides thereupon also construe as well as determine after a dispassionate application of mind to the apposite evidence providing proof of its having been validly and duly executed, its probative vigor. The learned trial Court while dismissing the application preferred before it by the plaintiff/petitioner herein under Section 65 of the Evidence Act for leave to tender into evidence the photocopy of the agreement of 11.4.2011 had not paid reverence to the fact of an admission on the part of the defendant/respondent herein comprised in paragraph 4 of his reply portraying therein the factum of an agreement of 11.4.2011 having come to be executed and it having come to be attested by one Mr. Anil Thakur, Advocate. With irreverence having been paid to the aforesaid fact comprised in the paragraph 4 of the reply of the defendant/respondent to the application at hand misled the learned trial judge to erroneously conclude that there was no agreement of 11.4.2011 executed inter -se the plaintiff/petitioner herein and the defendant/respondent herein, hence leave to tender into evidence by secondary mode a photocopy thereof was un -accordable. Without adverting to or adjudicating at this stage qua the effect of the factum of the defendant/respondent herein despite his for the reasons referred to hereinabove being in possession of an agreement of 11.4.2011 his omitting to produce it, nonetheless when the factum of its execution has not been controverted at the instance of the latter, necessarily then, subject to the defendant/respondent herein being permitted to raise all just objections qua its execution, the photocopy of the agreement of 11.4.2011 shall be permitted to be adduced into evidence. As stated hereinabove the learned trial Court shall proceed to dwell upon the vigor of the aforesaid objections taken by the defendant/respondent qua it besides it shall subject to all available evidence as may come to be adduced before it, shall while rendering its findings on the apt issues also determine the fact of its being relevant as well as admissible to facilitate it, to on its anchor render an adjudication. Records be sent back. The parties through their counsel are directed to appear before the learned trial Court on 26.10.2015. The petition stands disposed of so also the pending applications if any.