Dharmesh Kumar v. Smt. Saroj
Case Details
(O&M) CR-5765-2025 (O&M) -1- - IN THE HIGH COURT OF PUNJAB AND HARYANA IN THE HIGH COURT OF PUNJAB AND HARYANA IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH AT CHANDIGARH -.- CR CR-5765-2025 (O&M) Decided on :- 26.08.2025 Decided on : Dharmesh @ Dharmesh Kumar Dharmesh @ Dharmesh Kumar ....Petitioner VERSUS Smt. Saroj ....Respondent MANDEEP PANNU CORAM : HON'BLE MS. JUSTICE MANDEEP PANNU CORAM : HON'BLE M Present: Mr. Shiv Raj Malik , Advocate for the petitioner. Mr. Shiv Raj Malik, Advocate for the petitioner. MANDEEP PANNU J. MANDEEP PANNU -.- 1. The petitioner has filed the present civil revision under Article 227 of The petitioner has filed the present civil revision under Article 227 of The petitioner has filed the present civil revision under Article 227 of The petitioner has filed the present civil revision under Article 227 of assailing the order dated 18.07.2025 passed by the learned the Constitution of India assailing the order dated 18.07.2025 passed by the learned assailing the order dated 18.07.2025 passed by the learned the Constitution of India
Facts
Trial Court, whereby the application filed by the plaintiff under Section 151 CPC Trial Court, whereby the application filed by the plaintiff under Section 151 CPC Trial Court, whereby the application filed by the plaintiff under Section 151 CPC Trial Court, whereby the application filed by the plaintiff under Section 151 CPC for permission to lead secondary evidence of an agreement to sell dated 03.08.2021 for permission to lead secondary evidence of an agreement to sell dated 03.08.2021 for permission to lead secondary evidence of an agreement to sell dated 03.08.2021 for permission to lead secondary evidence of an agreement to sell dated 03.08.2021 was allowed. Facts 2. filed a suit on 11.03.2022 seeking possession The plaintiff/respondent filed a suit on 11.03.2022 seeking possession filed a suit on 11.03.2022 seeking possession The plain by way of specific performance of an agreement to sell dated 03.08.2021 for a total by way of specific performance of an agreement to sell dated 03.08.2021 for a total by way of specific performance of an agreement to sell dated 03.08.2021 for a total by way of specific performance of an agreement to sell dated 03.08.2021 for a total sale consideration of ₹50,00,000/–, alleging that a sum of sale consideration of had been , alleging that a sum of ₹10,00,000/– had been cheque. The agreement envisaged execution of the paid as earnest money through cheque. The agreement envisaged execution of the cheque. The agreement envisaged execution of the paid as earnest money through sale deed on or before 02.11.2021. sale deed on or before 02.11.2021. 3. The defendant/petitioner denied execution of the alleged agreement. The defendant/petitioner denied execution of the alleged agreement. The defendant/petitioner denied execution of the alleged agreement. The defendant/petitioner denied execution of the alleged agreement. He asserted that the genuine agreement dated 03.08.2021 was for a sale He asserted that the genuine agreement dated 03.08.2021 was for a sale He asserted that the genuine agreement dated 03.08.2021 was for a sale He asserted that the genuine agreement dated 03.08.2021 was for a sale consideration of ₹65,25,000/–, with ₹12,00,000/ consideration of paid as earnest money, and ₹12,00,000/– paid as earnest money, and TRIPTI SAINI 2025.09.01 09:24 I attest to the accuracy and integrity of this document (O&M) CR-5765-2025 (O&M) -2- - is forged and contended that the agreement relied upon by the plaintiff/respondent is forged and contended that the agreement relied upon by the plaintiff contended that the agreement relied upon by the plaintiff fabricated, typed upon a photocopy of the same stamp paper. fabricated, typed upon a photocopy of the same stamp paper. fabricated, typed upon a photocopy of the same stamp paper. 4. The plaintiff/respondent never produced the original agreemen The plaintiff t of never produced the original agreement of . An earlier application dated 10.04.2023 filed by her to compel the ₹50,00,000/–. An earlier application dated 10.04.2023 filed by her to compel the . An earlier application dated 10.04.2023 filed by her to compel the . An earlier application dated 10.04.2023 filed by her to compel the defendant to produce the original agreement was dismissed on 17.10.2023 on the defendant to produce the original agreement was dismissed on 17.10.2023 on the defendant to produce the original agreement was dismissed on 17.10.2023 on the defendant to produce the original agreement was dismissed on 17.10.2023 on the was not in possession of it. Left with no other ground that the defendant/petitioner was not in possession of it. Left with no other was not in possession of it. Left with no other ground that the defendant ative, she filed another application on 19.01.2024 under Section 151 CPC alternative, she filed another application on 19.01.2024 under Section 151 CPC ative, she filed another application on 19.01.2024 under Section 151 CPC ative, she filed another application on 19.01.2024 under Section 151 CPC seeking permission to lead secondary evidence of the photocopy of the agreement. seeking permission to lead secondary evidence of the photocopy of the agreement. seeking permission to lead secondary evidence of the photocopy of the agreement. seeking permission to lead secondary evidence of the photocopy of the agreement. 5. The defendant/petitioner objected to the maintainability of the The defendant/petitioner objected to the maintainability of the The defendant/petitioner objected to the maintainability of the The defendant/petitioner objected to the maintainability of the application under Section 151 of C , arguing that (i) no foundational facts had under Section 151 of CPC, arguing that (i) no foundational facts had , arguing that (i) no foundational facts had been laid; (ii) the authenticity of the photocopy was not established; and (iii) the been laid; (ii) the authenticity of the photocopy was not established; and (iii) the been laid; (ii) the authenticity of the photocopy was not established; and (iii) the been laid; (ii) the authenticity of the photocopy was not established; and (iii) the document was forged and fabricated, hence outside the scope of secondary document was forged and fabricated, hence outside the scope of secondary document was forged and fabricated, hence outside the scope of secondary document was forged and fabricated, hence outside the scope of secondary evidence. Findings of the Trial Court Findings of the Trial Court 6. ed Trial Court allowed the application, placing reliance upon The learned Trial Court allowed the application, placing reliance upon ed Trial Court allowed the application, placing reliance upon The learn , which Surinder Kaur v. Mahal Singh and others, 2014 (1) RCR (Civil) 467, which Surinder Kaur v. Mahal Singh and others, 2014 (1) RCR (Civil) 467 Surinder Kaur v. Mahal Singh and others, 2014 (1) RCR (Civil) 467 summarises the principles governing secondary evidence. The Court observed that summarises the principles governing secondary evidence. The Court observed that summarises the principles governing secondary evidence. The Court observed that summarises the principles governing secondary evidence. The Court observed that foundation, namely that the original document the plaintiff had laid the necessary foundation, namely that the original document foundation, namely that the original document the plaintiff had laid the necessary was not forthcoming despite earlier efforts, and that the photocopy could be was not forthcoming despite earlier efforts, and that the photocopy could be was not forthcoming despite earlier efforts, and that the photocopy could be was not forthcoming despite earlier efforts, and that the photocopy could be permitted to be produced in secondary evidence. permitted to be produced in secondary evidence. permitted to be produced in secondary evidence.
Legal Reasoning
03.08.2021. This entry lends prima facie support to the existence of the document. 03.08.2021. This entry lends prima facie support to the existence of the document. 03.08.2021. This entry lends prima facie support to the existence of the document. 03.08.2021. This entry lends prima facie support to the existence of the document. eement has not been produced despite earlier attempts to secure it The original agreement has not been produced despite earlier attempts to secure it eement has not been produced despite earlier attempts to secure it The original agr from the defendant. These facts constitute sufficient foundation for permitting from the defendant. These facts constitute sufficient foundation for permitting from the defendant. These facts constitute sufficient foundation for permitting from the defendant. These facts constitute sufficient foundation for permitting secondary evidence under Section 65 of the Indian Evidence Act. secondary evidence under Section 65 of the Indian Evidence Act. secondary evidence under Section 65 of the Indian Evidence Act. 10. evidence can be permitted only The law is well settled that secondary evidence can be permitted only The law is well settled that secondary The law is well settled that secondary when the party seeking to rely upon it lays foundational facts showing the non- when the party seeking to rely upon it lays foundational facts showing the non when the party seeking to rely upon it lays foundational facts showing the non when the party seeking to rely upon it lays foundational facts showing the non ational facts stand availability of the original. In the present case, such foundational facts stand availability of the original. In the present case, such found availability of the original. In the present case, such found ginal has not been the suit is based on the disputed agreement, the original has not been the suit is based on the disputed agreement, the ori established, the suit is based on the disputed agreement, the ori TRIPTI SAINI 2025.09.01 09:24 I attest to the accuracy and integrity of this document (O&M) CR-5765-2025 (O&M) -4- - produced despite earlier application and the photocopy is shown to be entered in ed despite earlier application and the photocopy is shown to be entered in and the photocopy is shown to be entered in the notary’s register. the notary’s register. 11. It must also be emphasised that allowing a party to adduce secondary It must also be emphasised that allowing a party to adduce secondary It must also be emphasised that allowing a party to adduce secondary It must also be emphasised that allowing a party to adduce secondary t only permits evidence does not amount to proof of the document itself. It only permits evidence does not amount to proof of the document itself. I evidence does not amount to proof of the document itself. I production of the copy as evidence, subject to its genuineness and execution being production of the copy as evidence, subject to its genuineness and execution being production of the copy as evidence, subject to its genuineness and execution being production of the copy as evidence, subject to its genuineness and execution being proved at trial. The burden will remain upon the plaintiff to establish the validity proved at trial. The burden will remain upon the plaintiff to establish the validity proved at trial. The burden will remain upon the plaintiff to establish the validity proved at trial. The burden will remain upon the plaintiff to establish the validity and authenticity of the document through evidence. and authenticity of the document through evidence. and authenticity of the document through evidence. 12. As regards the petitioner’s reliance on As regards the pe J. Yashoda v. K. Shobha Rani, titioner’s reliance on J. Yashoda v. K. Shobha Rani, 2007 (2) RCR (Civil) 840, the said judgment is of no assistance 2007 (2) RCR (Civil) 840 . In that , the said judgment is of no assistance to him. In that case, the Supreme Court held that as long as higher or superior evidence is in case, the Supreme Court held that as long as higher or superior evidence is in case, the Supreme Court held that as long as higher or superior evidence is in case, the Supreme Court held that as long as higher or superior evidence is in ll be given, and that secondary evidence possession of a party, no inferior proof shall be given, and that secondary evidence ll be given, and that secondary evidence possession of a party, no inferior proof sha is admissible only in the absence of primary evidence. It was further observed that is admissible only in the absence of primary evidence. It was further observed that is admissible only in the absence of primary evidence. It was further observed that is admissible only in the absence of primary evidence. It was further observed that if the original itself is found to be inadmissible owing to failure of the party to if the original itself is found to be inadmissible owing to failure of the party to if the original itself is found to be inadmissible owing to failure of the party to if the original itself is found to be inadmissible owing to failure of the party to permitted to introduce secondary prove it to be valid, the same party cannot be permitted to introduce secondary prove it to be valid, the same party cannot be prove it to be valid, the same party cannot be evidence of its contents. The facts of the present case, however, are clearly evidence of its contents. The facts of the present case, however, are clearly evidence of its contents. The facts of the present case, however, are clearly evidence of its contents. The facts of the present case, however, are clearly ginal distinguishable. Here, nothing has come on record to show that the original distinguishable. Here, nothing has come on record to show that the ori distinguishable. Here, nothing has come on record to show that the ori agreement is inadmissible, rather, the original is missing and could agreement is inadmissible, not be rather, the original is missing and could not be produced. It is for this reason that the plaintiff has sought to rely upon the produced. It is for this reason that the plaintiff has sought to rely upon the produced. It is for this reason that the plaintiff has sought to rely upon the produced. It is for this reason that the plaintiff has sought to rely upon the photocopy, duly entered in the notary’s register, and is entitled to lead secondary photocopy, duly entered in the notary’s register, and is entitled to lead secondary photocopy, duly entered in the notary’s register, and is entitled to lead secondary photocopy, duly entered in the notary’s register, and is entitled to lead secondary evidence thereof. evidence thereof. 13. from The judgment cited by the petitioner does not bar the plaintiff from The judgment cited by the petitioner does not bar the plaintiff The judgment cited by the petitioner does not bar the plaintiff being granted permission to lead secondary evidence in the present factual being granted permission to lead secondary evidence in the present factual being granted permission to lead secondary evidence in the present factual being granted permission to lead secondary evidence in the present factual scenario. The trial Court has rightly exercised its discretion by granting such scenario. The trial Court has rightly exercised its discretion by granting such scenario. The trial Court has rightly exercised its discretion by granting such scenario. The trial Court has rightly exercised its discretion by granting such permission, while leaving the question of genuineness, validity, and probative permission, while leaving the question of genuineness, validity, and probative permission, while leaving the question of genuineness, validity, and probative permission, while leaving the question of genuineness, validity, and probative ument to be adjudicated at the stage of trial. value of the document to be adjudicated at the stage of trial. value of the doc TRIPTI SAINI 2025.09.01 09:24 I attest to the accuracy and integrity of this document (O&M) CR-5765-2025 (O&M) -5- - 14. In view of the above, this Court finds no infirmity in the impugned In view of the above, this Court finds no infirmity in the impugned In view of the above, this Court finds no infirmity in the impugned In view of the above, this Court finds no infirmity in the impugned order. The present present revision petition being devoid of merit is accordingly devoid of any merit is accordingly dismissed. 15.
Arguments
of learned counsel for the petitioner Submissions of learned counsel for the petitioner of learned counsel for the petitioner 7. Learned counsel for the petitioner Learned c has reiterated that the ner/defendant has reiterated that the application was not maintainable since it was filed under Section 151 CPC without application was not maintainable since it was filed under Section 151 CPC without application was not maintainable since it was filed under Section 151 CPC without application was not maintainable since it was filed under Section 151 CPC without reference to Section 65 of the Indian Evidence Act reference to Section 65 of the . It is further urged that Evidence Act, 1872. It is further urged that pute, that the copy is the very existence of the alleged agreement is in dispute, that the copy is the very existence of the alleged agreement is in dis the very existence of the alleged agreement is in dis TRIPTI SAINI 2025.09.01 09:24 I attest to the accuracy and integrity of this document (O&M) CR-5765-2025 (O&M) -3- - fabricated, and that no secondary evidence can be permitted where genuineness fabricated, and that no secondary evidence can be permitted where genuineness fabricated, and that no secondary evidence can be permitted where genuineness fabricated, and that no secondary evidence can be permitted where genuineness In support of his contention, learned counsel has placed itself is under challenge. In support of his contention, learned counsel has placed In support of his contention, learned counsel has placed itself is under challenge. the judgment of Hon’ble Supreme Court passed in the case of the judgment of Hon’ble Supreme Court passed in the case the judgment of Hon’ble Supreme Court passed in the case reliance upon the judgment of Hon’ble Supreme Court passed in the case J. Yashoda v. K. Shobha Rani, 2007 (2) RCR (Civil) 840. J. Yashoda v. K. Shobha Rani, 2007 (2) RCR (Civil) 840 J. Yashoda v. K. Shobha Rani, 2007 (2) RCR (Civil) 840 Findings 8. made by the learned I have carefully considered the submissions made by the learned I have carefully considered the submissions I have carefully considered the submissions and perused the record. counsel for the petitioner and perused the record. counsel for the petitioner 9. The facts reveal that the suit of the plaintiff The facts reveal that the suit is founded entirely of the plaintiff - Saroj is founded entirely upon the agreement to sell dated 03.08.2021. The existence of an agreement on upon the agreement to sell dated 03.08.2021. The existence of an agreement on upon the agreement to sell dated 03.08.2021. The existence of an agreement on upon the agreement to sell dated 03.08.2021. The existence of an agreement on that date is not denied by the defendant; what is in dispute are its terms, namely the that date is not denied by the defendant; what is in dispute are its terms, namely the that date is not denied by the defendant; what is in dispute are its terms, namely the that date is not denied by the defendant; what is in dispute are its terms, namely the was for consideration and the amount of earnest money. The plaintiff claims it was for consideration and the amount of earnest money. The plaintiff claims it consideration and the amount of earnest money. The plaintiff claims it ₹50,00,000/– with earnest money, while the defendant asserts it was with ₹10,00,000/– earnest money, while the defendant asserts it was earnest money, while the defendant asserts it was for ₹65,25,000/– – with ₹12,00,000/– earnest money and the one photocopy of earnest money and the one the photocopy of which has been produced, never existed. It is relevant to mention here that the which has been produced, never existed. It is relevant to mention here that the which has been produced, never existed. It is relevant to mention here that the which has been produced, never existed. It is relevant to mention here that the py of the agreement produced by the plaintiff is duly attested by the Notary photocopy of the agreement produced by the plaintiff is duly attested by the Notary py of the agreement produced by the plaintiff is duly attested by the Notary py of the agreement produced by the plaintiff is duly attested by the Notary Public and entered in the register of the Notary Public at Serial No. 282 dated Public and entered in the register of the Notary Public at Serial No. 282 dated Public and entered in the register of the Notary Public at Serial No. 282 dated Public and entered in the register of the Notary Public at Serial No. 282 dated
Decision
Pending application(s), if any, also stand disposed off. Pending application(s), if any, also stand Pending application(s), if any, also stand 2025 August 26, 2025 tripti (MANDEEP PANNU) JUDGE speaking : Speaking Whether speaking/non-speaking : Speaking Whether speaking/non : Yes/No : Yes/No Whether reportable Whether reportable TRIPTI SAINI 2025.09.01 09:24 I attest to the accuracy and integrity of this document