The High Court in revision dismissed the petitioner's application. The petitioner sought secondary evidence of an unregistered compromise deed regarding property mutation, which was rejected by the trial court due to lack of specific execution details and proof of loss.
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CR No.1958 of 2011
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CR No.1958 of 2011 .
Decided on: May 03, 2011.
Shashi Kant.
.. Petitioner
VERSUS
Prem Narayan etc..
.. Respondents
CORAM: HON'BLE MR.JUSTICE M.M.S.BEDI
PRESENT Mr.Sanjay Jain, Advocate, for the petitioner.
Mr.S.S.Kamboj, Advocate, for respondent No.1.
Mr.Vinod Sharma, Advocate, for respondent Nos.2 & 3.
M.M.S. BEDI, J. (ORAL)
An application filed by the defendant-petitioner for
secondary evidence has been dismissed by the trial Court vide order
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CR No.1958 of 2011
dated 14.03.2011.
Aggrieved by the said order, the present revision petition has been preferred by the petitioner.
Briefly stated, the relevant facts, required for the adjudication of this revision petition, are that the plaintiff-respondent had filed a suit for a decree of mandatory injunction directing defendant Nos.2 & 3, i.e., Municipal Council, to mutate the properties in dispute situated in Ambala Cantt., in the name of plaintiffs.
The defendant-petitioner filed an application for producing secondary evidence regarding a compromise of October, 1987, which was allegedly arrived at between the plaintiff and the family members wherein it was admitted by the plaintiff before their mother that the properties in dispute were owned by one Kalu Ram and after his death Rameshwar Dass and his legal heirs have got right in the property in dispute. The original compromise was allegedly kept with the Police Station, Ambala Cantt. and could not be traced in spite of best efforts of the defendant-petitioner. The trial Court has dismissed the application on the following grounds: -
(i) Compromise is not a registered document;
(ii) It is highly improbable that the petitioner is not in possession of a compromise though it was recorded in his favour;
(iii) There is no DDR or any other
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CR No.1958 of 2011
document produced to show that the original has been lost;
(iv) No date of compromise deed has been mentioned in the application. The date of loss of the document from the custody of the petitioner is also not mentioned; and
(v) The document sought to be produced does not fulfill the prior conditions as provided under Section 65 of the Indian Evidence Act.
Counsel for the petitioner has vehemently contended that the grant of permission to produce the documentary evidence does not tantamount to establishing the document. The petitioner will subsequently prove the execution and loss of the document.
I have considered the contention of counsel for the defendant-petitioner and I am of the opinion that for the detailed reasons given by the trial Court refusing to grant permission to produce the secondary evidence especially when the exact particulars of the document, the date of its execution and the loss have not been, prima facie, established, no permission can be granted for production of secondary evidence. A fishing enqiry of a document is not permissible in the garb of an attempt to produce secondary evidence.
Counsel for the petitioner has placed reliance upon Ashok Kumar Sachdeva Vs. Harish Malik, 2007(4) RCR (Civil),
. . . 3
CR No.1958 of 2011
311 .
In the said case in support of their contention that grant of leave to lead secondary evidence does not mean the document is admitted in evidence nor it is a finding of the existence of any of the conditions indicated in Section 65 of the Evidence Act. It only amounts to holding an enquiry regarding existence of document and its loss under some circumstances. There is no controversy regarding the law settled in the said judgment but in view of the peculiar circumstances of this case where neither the detailed particulars have been specifically mentioned nor there is any material satisfying the conscious of the Court to establish that the document had actually been executed. The loss of the document is also, prima facie, not established. For the detailed reasons, the ratio of the judgment is not applicable.
No ground is made out for interference.
The petition is dismissed. However, this order will
not prejudice the rights of the defendant-petitioner to prove the documents in accordance with law.
(M.M.S.BEDI) JUDGE
May 03, 2011. rka
. . . 4
3 issues framed by the court
Whether the trial court erred in refusing permission to produce secondary evidence due to lack of specific details regarding the date of execution, loss, and documentary proof of loss.
Whether the cited precedent allows production of secondary evidence as a fishing inquiry when conditions under Section 65 are not prima facie established.
Whether a compromise, not being a registered document and lacking execution details, satisfies the requirements for secondary evidence production.
Colour shows how this judgement treated each authority
Ashok Kumar Sachdeva Vs. Harish MalikDistinguished¶38
Ashok Kumar Sachdeva Vs. Harish Malik, 2007(4) RCR (Civil), 311
1 provisions across 1 enactments
Shashi Kant
Prem Narayan
M.M.S. BEDI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
