Baljit Kaur vs Mohinder Kaur and Others

G.C. Garg, J.—Dismissal of an application u/s 65 of the Evidence Act filed by the plaintiff-petitioner for leading secondary evidence of the agreement, by the trial Court vide order dated October 24, 1988 has given rise to the present revision petition.

Plaintiff petitioner filed a suit which is still pending disposal. In the said suit she filed an application u/s 65 of the Evidence Act seeking permission to lead secondary evidence of the agreement. According to her the agreement was in possession of the defendant or his attorney Prem Singh, Notice of the application was given to the defendant who denied having executed any agreement to sell and even otherwise, it was stated that there was no question of such agreement being in possession of the defendant. In the circumstances, the trial Court dismissed the said application.

The plaintiff is basing her claim on the basis of agreement to sell executed by the defendant in her favour. If such an agreement was executed between the parties, the original thereof would obviously be in possession of the plaintiff herself. In the normal course of events, such an agreement could not be in possession of the defendants. Section 65 of the Evidence Act provides that when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, the applicant can lead secondary evidence of such document after serving a notice as contemplated by Section 65 of the Evidence Act on such person. In the present case, it is not shown how the agreement in question came to be in the possession of the defendant or that the same was supposed to be in possession of the defendant. The defendant has categorically denied the existence of such agreement and stated that it is not in his possession. In the circumstances, no fault can be found with the order passed by the trial Court declining the application of the plaintiff petitioner for leading secondary evidence u/s 65 of the Evidence Act. Consequently, the revision fails and is hereby dismissed. There shall however, be no order as to costs.