HUKMI CHAND MOSUN Vs. KUSHAL CHAND DUGGAD

JUDGEMENT

(1.) Under challenge is the impugned order dated 25.02.2017 whereby the petitioner-tenant's (hereinafter 'tenant') application under Sec. 65 of the Evidence Act, 1872 (hereinafter 'the Act of 1872') for leading secondary evidence qua a purported agreement dated 28.06.2006 between one M/s. JKJ and Sons Jewellers and the respondent-landlord (hereinafter 'landlord') has been dismissed.

(2.) I have heard the counsel for the tenant and the landlord and perused the impugned order dated 25.02.2017.

(3.) The trial court has recorded in the impugned order that an earlier application filed by the tenant under Order 11, 12 and 14 CPC, the landlord had denied the existence of the aforesaid agreement dated 28.06.2006 whereupon the said application was dismissed vide order dated 03.12.2016. Resultantly the agreement of which secondary evidence was sought to led was not in existence. It was noted that aside of the aforesaid, the application under Sec. 65 of the Act of 1872 was also not supported by an affidavit. Reliance was also placed by the trial court on the judgment of the Apex Court in the case of (2007) 5 SCC 730 Smt. J. Yashoda Vs. Smt. K. Shobharani wherein it was held that a photocopy could not be allowed to be admitted as secondary evidence where there have no proof of the photocopy being compared with the original. The Trial court also noted that the underlying suit, in which the application was belatedly filed in 2016, had been pending since 2007 and at the stage when the tenant was under cross-examination. His conduct evidenced that the application was apparently moved only for the purpose of delaying the adjudication of eviction petition. So holding the application under Sec. 65 of the Act of 1872 filed by the tenant was dismissed with cost of Rs. 1,000.00.