Sat Narain & Anr. v. Mahabir Parshad & Anr.

CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Sandeep Chhabra, Advocate for the petitioners. Mr. Amit Sharma, Advocate for the respondents. * * * L. N. MITTAL, J. (Oral) : Defendants, who are appellants in the lower appellate court, have filed the instant revision petition under Article 227 of the Constitution of India impugning order dated 09.04.2010 (Annexure P-1) passed by learned District Judge, Jind, thereby allowing application of plaintiffs/respondents for secondary evidence. Suit filed by respondents against the petitioners was decreed by the trial court. Petitioners have filed first appeal against the judgment and decree of the trial court. During pendency of first appeal, respondents C. R. No. 2948 of 2010 2 moved application Annexure P-2 for permission to lead secondary evidence of two documents i.e. kabalas of which certified copies Ex.P-10 and Ex.P- 11 have already been produced in evidence in the trial court.

It is pleaded that the said documents being certified copies of public documents are per se admissible in evidence under Section 77 of the Evidence Act. However, nevertheless, to overcome any objection, permission to lead secondary evidence of the said documents was sought. Lower appellate court has allowed the said application vide impugned order Annexure P-1. I have heard learned counsel for the parties and perused the case file. Learned counsel for the petitioners contended that the respondents did not make out a case for additional evidence to be led in first appeal and therefore, secondary evidence could not be permitted. The contention cannot be accepted. Documents Ex.P-10 and Ex.P-11 have already been produced in evidence in the trial court. However, to overcome any objection or technicality, the respondents sought permission to prove the same by calling concerned official from the office of Deputy Commissioner.

Consequently, no application for additional evidence was required to be made because documents had already been produced in the trial court. Learned counsel for the petitioners also contended that certified copies of the documents did not carry presumption under Section 90 of the C. R. No. 2948 of 2010 3 Evidence Act, as held by Hon'ble Supreme Court in Lakhi Baruah vs. Padma Kanta Kalita reported as 1996 (2) R. R. R. 634. However, this contention necessitated the moving of application Annexure P-2 by the respondents. Since certified copies of documents do no carry presumption under Section 90 of the Evidence Act, respondents wanted to avoid any technical objection regarding mode of proof of documents Ex.P-10 and Ex.P-11. Lower appellate court has, therefore, rightly permitted the plaintiffs/respondents to lead secondary evidence on payment of Rs.2,000/- as cost. The impugned order does not suffer from any illegality.

It cannot be said that the lower appellate court has exercised jurisdiction, which did not vest in it or has exercised jurisdiction with any illegality or material irregularity so as to warrant interference in exercise of revisional jurisdiction. For the reasons aforesaid, I find no merit in the instant revision petition, which is accordingly dismissed. September 15, 2010 monika ( L. N. MITTAL ) JUDGE