Amarjeet Singh Vs Tara Chand and Anr.

By way of instant petition, the petitioner has assailed the order dated 11.05.2022, passed by learned Senior Civil Judge, Court No.1, Mandi, in Civil Suit No.234/18/11, whereby the application of the petitioner for leave to lead secondary evidence has been dismissed.

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The petitioner and respondents herein are plaintiff and defendant, respectively before learned trial Court in Civil Suit No.234/18/11. The parties hereafter shall be referred to by the same status as they hold before learned trial Court.

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The plaintiff has filed a suit for permanent prohibitory injunction against the defendant and another in respect of the

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land comprised in Khewat No.401, Khatauni No.476, Khasra No. 701, 703 and 705 along with Khewat Khatuni No.400/475, Khasra No.700 and 702, situated in Mauja Pandoh, Tehsil Sadar, District Mandi, H.P. on the premise that the plaintiff along with his two brothers jointly owned the entire suit land. One of the brothers Bhupinder Singh (defendant No.2 before learned trial Court) had sold his share to the defendant and the said defendant being out of possession was trying to interfere in the peaceful possession of the plaintiff over the suit land. The specific case of the plaintiff is that on the suit land a joint house of the parties existed which is enclosed by a common boundary and has only one passage.

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While leading the evidence, the plaintiff had sought to prove the document evidencing filing of complaint by him in Police Post, Pandoh, District Mandi against the defendant. In order to prove the filing of the complaint, the original record was summoned from Police Post, Pandoh, but it was revealed that the record was not available as the same stood destroyed. In such circumstances, the plaintiff was deprived from production of original record from where the fact could be proved.

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The plaintiff claimed to be in receipt of a copy of the complaint with original signatures of MHC Om Parkash as acknowledgement of receipt. However, he pleaded that the document with original signatures of MHC Om Parkash has been

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lost somewhere and he was left only with photo copy of such document.

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In above background, the plaintiff in the first instance filed an application under Section 151 of the CPC with a prayer to summon MHC Om Parkash for proving his signatures on photo copy, but his prayer was declined on the ground that even if the witness was summoned no fruitful purpose would be served as the plaintiff did not have the original signatures of MHC Om Parkash. It is thereafter that the plaintiff moved an application under Section 65 of the Evidence Act seeking permission to lead secondary evidence.

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The prayer of the plaintiff has been rejected on the ground that the document sought to be proved by the plaintiff by examining MHC Om Parkash was not relevant to the controversy

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Having perused the record of the case, I am of considered view that the impugned order needs interference for the reason that the finding regarding the document not being relevant, prima facie appears to be incorrect.

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The suit has been filed by the plaintiff against the defendant for permanent prohibitory injunction on the premise that he along with his two brother were co-owners of the suit land. One of the brothers had sold his share to defendant. The defendant was out of possession as even the brother of plaintiff,

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from whom the defendant has purchased the share, was not residing in the property and was residing at Manali since long.

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The defendant, though, has pleaded that he was put in possession of the house by his predecessor-in-interest, but he has alleged that the plaintiff has forcefully occupied the said house during the pendency of the suit and in result the defendant has been forced to seek a decree of possession by way of counter claim.

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Keeping in view the controversy inter se the parties, it cannot be said that the fact sought to be established by the plaintiff is not relevant. In a suit for injunction, where the plaintiff has alleged interference in his peaceful possession by defendant, a fact that the plaintiff had allegedly made a complaint to the police may have bearing on the final adjudication of the matter.

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The plaintiff has been able to make out a case for leave to prove a fact by secondary evidence; as the original has already been established to have been destroyed. The fact that the plaintiff has a photo copy of the complaint along with photo copy of signatures of the recipient MHC Om Parkash itself prima facie shows that the plaintiff had a copy of the complaint with original signatures of MHC Om Parkash. This fact otherwise also does not appear to have been either seriously disputed by the

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respondents or considered by the Court while deciding the application under Section 65 of the Indian Evidence Act.

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In result, the petition is allowed. Order dated 11.05.2022, passed by learned Senior Civil Judge, Court No.1, Mandi, in Civil Suit No.234/18/11 is set aside. The plaintiff is permitted to prove the factum of filing of complaint as also its receipt by MHC Om Parkash by secondary evidence.

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The parties are directed to appear before learned trial Court on 30^th June, 2025.

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The petition is accordingly disposed of along with pending application, if any.

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(Satyen Vaidya ) Judge

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18^th June, 2025 (vt)

Amarjeet Singh v. Tara Chand and Anr.

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Amarjeet Singh v. Tara Chand and Anr.

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