Ram Kishan & Ors. v. Rameshwar

CORAM: HON'BLE MR. JUSTICE VIJENDER SINGH MALIK Present: Mr.Vikas Lochab, Advocate for the petitioners. **** Vijender Singh Malik, J. This is a revision petition brought by the defendants Ram Kishan and others under the provisions of Article 227 of the Constitution of India for setting aside the order dated 09.05.2011 (Annexure P-2) passed by learned Additional Civil Judge (Senior Division), Ganaur whereby the application of Rameshwar, plaintiff for leading secondary evidence has been allowed. The suit brought by Rameshwar has been for specific performance of the contract of sale and for permanent injunction as a consequential relief thereof. The agreement of sale, which is the basis of the claim made in the suit, is dated 7.5.2003. Claiming that the same has Civil Revision No. 3851 of 2011 --2-- been misplaced and that the same was scribed by a deed writer, who had entered the same in his register at pages no.101 and 102 on 07.05.2003, duly thumb marked by the parties, the contents of the same were prayed to be permitted to be proved by leading secondary evidence thereof. The application was opposed by the petitioners. Hearing learned counsel for the parties, learned Additional Civil Judge (Senior Division), Ganaur, vide order dated 09.05.2011 has allowed the application and permitted the plaintiff/respondent to lead secondary evidence to prove the contents of the document. Feeling dissatisfied with the aforesaid order, the petitioners have brought this revision petition. I have heard Mr. Vikas Lochab, learned counsel for the revision-petitioners and have gone through the record. Learned counsel for the revision-petitioners has submitted that the loss of the document is not proved. According to him, the trial court did not take into account the provisions of section 136 of the Evidence Act while allowing the application. He has submitted that learned trial court has, thus, wrongly allowed the application for secondary evidence. It is a case where the factum of execution of agreement of sale is not disputed by the defendants/petitioners. They have just averred in their written statement that the alleged agreement of sale and the receipt had been written during the pendency of the suit, which was pending between defendants no.1 to 6 and defendant no.7. The factum of the Civil Revision No. 3851 of 2011 --3-- plaintiff misplacing the document appears in the very plaint of the suit and, thus, the plaintiff came to the court with the plea that he has misplaced the agreement of sale. What else he could do in order to prove that the document has been misplaced. When the very fact of execution of the agreement is admitted and the document is shown to have been scribed by a deed writer, no further proof of loss could be expected from the plaintiff/respondent for allowing the application for leading secondary evidence. In these circumstances, I find no fault with the impugned order and consequently, find no ground to interfere with the same. The revision petition is, therefore, dismissed.

21.09.2011 dinesh (VIJENDER SINGH MALIK) JUDGE