Arun Kumar vs Joga Singh

Alok Singh, J.—Present petition is filed challenging the order dated 18.8.2010 passed by Additional Civil Judge (Sr. Division), Kaithal, whereby application moved by the plaintiff seeking permission to lead additional evidence was rejected on the ground that application is not supported by an affidavit.

Learned Counsel for the petitioner has placed reliance on the judgment of this Court in the case of Ashok Kumar Sachdeva v. Harish Malik reported in 2007 (4) RCR (Civil) 311. In the case of Ashok Kumar Sachdeva (supra), learned Single Judge has observed as under:

After hearing learned Counsel for the parties, I am of the view that to prove a document by way of primary or secondary evidence is a rule of evidence. Whether the party seeking leave of the Court to lead secondary evidence ultimately succeeds in proving the document or not is a question of fact and depends upon evidence. Petitioner has pleaded in the application the loss of original document. Under what circumstances document was lost is a question of fact and evidence. It is settled rule of pleadings that a party must disclose material facts and need not plead evidence. In the instant case material fact is loss of document and circumstances leading to loss is a question of evidence. This question can only be decided after providing opportunity to the party concerned to lead secondary evidence. To grant 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. Failure or success to prove the existence of document or its loss cannot be predetermined that too without providing opportunity. Whether it is proved or not, is to be seen after the leave is granted and the material/evidence produced is evaluated. The question raised by learned Counsel appearing for the respondent is premature at this stage.

Learned Counsel for the plaintiff/petitioner states that the fact regarding loss of original documents can only be proved when plaintiff is permitted to lead secondary evidence. He further states that plaintiff is not supposed to prove loss of the document prior to the stage he is permitted to lead secondary evidence.

I find force in the argument of learned Counsel appearing for the plaintiff/petitioner.

In view of the judgment passed by learned Single Judge of this Court in the case of Ashok Kumar Sachdeva (supra), present petition is allowed. Plaintiff/petitioner is permitted to lead secondary evidence. In the secondary evidence, petitioner shall prove all the ingredients as observed by learned Single Judge in the case of Ashok Kumar Sachdeva (supra). However, plaintiff/petitioner shall pay Rs. 25,000/- as costs to the defendant/respondent before leading secondary evidence.

A copy of this order be given to learned Counsel for the petitioner under the signature of the Court Reader.