SHAKILA KHAN Vs. NARGIS KHAN

JUDGEMENT

(1.) Heard counsel for the petitioners-plaintiffs (for short, the 'plaintiffs') and perused the impugned order dated 20.9.2016, whereby the plaintiffs' application under Section 65 of the Evidence Act for permitting leading of secondary evidence of agreements to sell dated 30.3.2010 and 5.5.2010 purportedly relating to the suit property in a suit for declaration and injunction laid by them has been dismissed by the trial court holding that foundational facts as to existence of the agreements to sell dated 30.3.2010 and 5.5.2010 were not on record.

(2.) Mr. Sudesh Bansal, appearing for the plaintiffs has submitted that the impugned order is vitiated on various grounds. For one, Mr. Sudesh Bansal submitted the trial court has wrongly held that the agreements to sell dated 30.3.2010 and 5.5.2010 being un-stamped could not be admitted to evidence even in their original form and consequently secondary evidence qua them could not be permitted. Mr. Sudesh Bansal submitted that Section 35 of the Rajasthan Stamp Act, 1998 provides that where a document otherwise admissible is un-stamped or under stamped, it be impounded and on payment of proper stamp duty and applicable penalty by one seeking to rely thereon, can be admitted in evidence. Mr. Sudesh Bansal further submitted that as far as the foundational facts as to the existence of the agreements to sell dated 30.3.2010 and 5.5.2010 are concerned, in support of application under Section 65 of the Evidence Act, affidavit of one Bhaskar Petshali, a witness to the execution of the aforesaid agreements to sell between defendant and one K.K. Sharma as also the sale deed dated 21.5.2010 was filed but inexplicably not considered by the trial court rendering its conclusion on that fact perverse. It was submitted that Bhaskar Petshali was a witness not only to the agreements to sell dated 30.3.2010 and 5.5.2010 but also the admitted subseqeunt sale deed dated 21.5.2010 qua the very same property for reason of which the existence of the aforesaid two agreements to sell could not be doubted. It was further submitted that earlier an application was filed under Order 11 Rule 12 and 13 CPC by the plaintiff/s, which however came to be dismissed by the trial court on 12.5.2016. But therein it was stated that the two agreements to sell in issue were the photostat copies of the original agreements to sell. It was finally submitted by Mr. Sudesh Bansal that the plaintiff no.1 is the mother of the defendant Nargis Khan and was persuaded to purchase the house in issue (the suit property) under the sale deed dated 21.5.2010 in the defendant Nargis Khan's name on account of the fact that defendant at the relevant time was employed with the HDFC Bank and positioned to avail a home loan at beneficial rates of interest. Mr. Sudesh Bansal submitted that the trial court has overlooked the foundational facts on record as to the existence of the agreements to sell dated 30.3.2010 and 5.5.2010 and committed a perversity as also misdirection in law in dismissing the plaintiffs' application under Section 65 of the Evidence Act. That will entail grave prejudice to the plaintiffs without just cause and hence the petition be allowed and the impugned order be set-aside.

(3.) Mr. Sandeep Pathak, appearing for the defendant submitted that the entire case set up by the plaintiffs with regard to the purported agreements to sell dated 30.3.2010 and 5.5.2010 is absolutely false. He submitted that for one, no specific reference to the aforesaid two agreements to sell were made in the suit filed by the plaintiffs in the year 2012. Mr. Sandeep Pathak further pointed out that no application for leading secondary evidence qua the aforesaid purported two agreements to sell dated 30.3.2010 and 5.5.2010 was filed in the written statement for about four years despite written statement of denial of any agreement to sell referred to in the plaint. Mr. Pathak admitted that indeed the plaintiff is the mother of the defendant, but the entire consideration of Rs. 22.00 lakhs under the sale deed dated 21.5.2010 was paid by the defendant of which Rs. 18,49,000/- was obtained as loan from the HDFC bank. EMIs on the loan amount continued to be paid by the defendant no.1 despite the fact that subsequent to her marriage, she has moved out of Jaipur and the plaintiffs and other family members continue to reside in the said house. Mr. Sandeep Pathak submitted that an application (5 of 9) [ CW-14551/2016] under Order 11 Rule 12 and 13 CPC filed by the plaintiffs, on a specific denial having been made by the defendant no.1 with regard to the defendant being in possession of the agreements to sell dated 30.3.2010 and 5.5.2010 and to their existence, the trial court had clearly recorded a finding that the plaintiffs had failed to prove the existence of the aforesaid two alleged agreements to sell, what of they being in the possession of the defendant, and dismissed the application vide order dated 12.5.2016. It was submitted that the said order has not been challenged before any forum and thus has attained finality, consequent to which it cannot be argued before this Court in separate proceedings under Section 65 of the Evidence Act that agreements to sell dated 30.3.2010 and 5.5.2010 ever existed. Mr. Sandeep Pathak further submitted that secondary evidence is an exception to the rule of the obligation of the contesting parties to the litigation proving the case from primary evidence. As an exceptional situation, statutory preconditions for secondary evidence being permitted have to be strictly satisfied before the trial court. It was submitted that the application under Section 65 of the Evidence Act filed by the plaintiff is absolutely bald. The application did not state as to in what circumstances, no reference to the agreements to sell was made in the plaint in the first instance, why the application was not filed for four years despite denial of any agreement to sell prior to the sale deed dated 21.5.2010. Besides, the application did not disclose the time and occasion of making photo copies of the purported agreements to sell dated 30.3.2010 and 5.5.2010 and how the plaintiffs came into possession of the purported photocopies. Mr. Sandeep Pathak pointed out that aggrieved of the interlocutory order obtaining in the plaintiff's favour, the defendant had approached this Court in S.B.C.M.A. No. 2549/2013, which came to be disposed on 10.3.2015. Thereunder even though the appellate court did not interfere with the order of status-quo in favour of plaintiff, it was directed that the suit itself be disposed of within a period of one year from the court's order. Mr. Sandeep Pathak submitted that it was only at the end of the one year from the order dated 10.3.2015, that application under Order 11 Rule 12 and 13 CPC came to be filed by the plaintiff. After the said application was dismissed, the application in issue under Section 65 of the Evidence Act came to be filed. Mr. Sandeep Pathak submitted that aside of lacking in merits, the application was thus clearly an attempt to delay the trial in the suit to the plaintiff's advantage, enjoying as she was, an interim order. It was submitted that in these circumstances the order of the trial court dismissing the application under Section 65 of the Evidence Act being well considered order, there is no warrant to interfere therewith in the exercise of the superintending jurisdiction of this Court under Article 227 of the Constitution of India as the discretion of the trial court has justly and reasonably exercised.