Allowed

Chitar Mal andORS v. Vatika Grah Nirman Sahkari Ors.

Rajasthan HC7 May 2015CW/2958/2015

Case brief

AI extract

What is this about?

In a writ petition, the High Court of Rajasthan set aside impugned orders of the trial court. The High Court held that since the existence of the agreement was admitted by the respondents and the original was not produced, secondary evidence should have been permitted under Section 65 of the Evidence Act. The trial court was directed to allow such evidence.

What did the court decide?

Impugned orders set aside; trial court directed to permit petitioners to lead secondary evidence under Section 65 of the Evidence Act.

Chitar Mal andORS Vs Vatika Grah Nirman… — Civil Procedure and Limitation | Rajasthan HC (2015)

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S.B. Civil Writ Petition No.2958/ 2015

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR

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S.B. Civil Writ Petition No.2958/ 2015

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Chitar Mal & Ors.-Petitioners

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Versus

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Vatika Grah Nirman Sahakari Samiti Ltd. & Ors.-Respondents

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Date of Order-: : -7^th May, 2015

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Hon ' ble Ms. Ju st ice Bela M. Tr iv edi

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Mr. Kamlesh Pareek, for petitioners. Mr. Anil Sharma, for respondent/ s.

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ORDER

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By t h e Cou r t :-

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1 . The petitioners-plaintiffs have filed the present petition, challenging the order dated 16.12.2011 and the order dated 18.02.2015 passed by the Additional District & Sessions Judge (Fast Track) No.3, Jaipur City, Jaipur (hereinafter referred to as “the trial court”) in Civil Suit No.151/ 2008.

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2 . After having heard the learned counsels for the parties, it appears that the petitioners-plaintiffs have filed the suit against the respondents-defendants seeking cancellation of an undated agreement. It has been alleged that the petitioners had not executed any such agreement for selling the agriculture lands in question to the respondent No.3, who happened to be the relative of the petitioners-plaintiffs, and the respondent No.3 was misusing the said document.

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3 . The respondents-defendants have filed the written statement and also the counter claim in the said suit seeking specific performance of the very agreement for which the

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S.B. Civil Writ Petition No.2958/ 2015

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plaintiffs has sought cancellation. It appears that when the petitioners-plaintiffs filed application under Section 65 of the Evidence Act for leading secondary evidence in respect of the said agreement, the respondents filed the reply admitting that the original of the said agreement was with them, however was not traceable, and that the same would be produced in the court as and when found. It further appears that during the course of arguments before the trial court, in respect of the application filed by the petitioners-plaintiffs for leading secondary evidence under Section 65 of the Evidence Act, it was sought to be submitted by the learned counsel for the respondents-defendants that copy of the said agreement was fabricated and forged. Relying upon such submissions, the trial court has dismissed the application of the petitioners and also the review application filed by them vide the impugned orders. Being aggrieved by the same, the present petition has been filed.

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4 . Learned counsel Mr. Kamlesh Pareek for the petitioners submits that the impugned order passed by the trial court is exfacie illegal inasmuch as the respondents-defendants themselves had relied upon the agreement in question and admitted that the original of the said agreement was with them. Hence, the petitioners should be either permitted to lead secondary evidence or the court should exhibit the copy of the said agreement, the original of which was with the respondents. However, the learned counsel Mr. Anil Sharma for the

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S.B. Civil Writ Petition No.2958/ 2015

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respondents submits that the photo copy of the agreement being fabricated, and not being duly stamped could not be made admissible in evidence. He has relied upon the decision of this Court in case of Jagdish Prasad & Ors. Versus Parshu Ram & Anr., 2013 (1) WLC (Raj.) 696.

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5 . Having regard to the submissions made by the learned counsels for the parties, and to documents on record, more particularly the pleadings of the parties, it clearly transpires that the respondents-defendants had made counter claim in the suit filed by the petitioners-plaintiffs, seeking specific performance of the agreement in question, in respect of which the plaintiffs had sought cancellation. It is also admitted by the respondentsdefendants that the original of the said agreement is with them and the same has been misplaced, and that the same will be produced as and when the same is found. Under the circumstances when the existence of the document namely agreement in question is admitted by the respondents, and when the same is not being produced by the respondents-defendants, the trial court ought to have permitted the petitioners to lead secondary evidence in that regard.

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6 . Though the respondents had not taken any contention that the said agreement was fabricated or not duly stamped, the learned counsel for the respondents has raised such objections during the course of arguments. Hence, it is clarified that the parties shall be at liberty to raise such objections as and when

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S.B. Civil Writ Petition No.2958/ 2015

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the original agreement is produced by the respondentsdefendants, and the same shall be decided by the trial court in accordance with law.

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7 . In that view of the matter, the impugned orders passed by the trial court deserve to be set-aside and are accordingly set aside. The trial court is directed to permit the petitionersplaintiffs to lead the secondary evidence under Section 65 of the Evidence Act in respect of the agreement in question. The petition stands allowed accordingly. By this order, the stay application and other pending application if any, also stand disposed of.

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( Bela M. Tr ivedi) J. R.Vaishnav 1.

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“All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.” Ramesh Vaishnav-Personal Assistant

Chitar Mal andORS v. Vatika Grah Nirman Sahkari Ors.

Case brief

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Chitar Mal andORS v. Vatika Grah Nirman Sahkari Ors.

Case brief

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