Chetan Khurana and Another vs Sukhdev Singh and Another

Rakesh Kumar Garg, J.—This is Defendants'' revision petition challenging the impugned order dated 20.08.2010 passed by Additional Civil Judge(Senior Division), Jagraon, whereby the Plaintiff-Respondents have been allowed to lead secondary evidence to prove the agreement dated 15.12.2006 subject to proof of its existence, loss and all just exceptions.

As per the averments, Plaintiff-Respondents filed a suit for recovery of a sum of Rs. 96,875/ - along with interest against the Petitioners averring that an agreement was entered into between the Plaintiffs and Defendant No. 1 on 15.12.2006 vide which Plaintiffs had given their land to Defendants for removal of earth for brick kiln business for a period of two years for which Plaintiffs received an amount of Rs. 1,55,000/ - from them and Petitioner No. 1 agreed to pay the remaining balance amount of Rs. 96,875/ - by the end of October 2009. As per the agreement, Defendant No. 1 removed the earth from the land from October 2007 to July 2009 and thereafter stopped removing the earth. They also failed to pay the remaining balance amount of Rs. 96,875/ - and thus violated the terms and conditions of the agreement dated 15.12.2006.

In the written statement filed on behalf of the Petitioners, the averments regarding the agreement dated 15.12.2006 were denied alleging that there was no agreement dated 15.12.2006 and in fact the agreement was of 25.11.2005.

The Plaintiff-Respondents filed an application under Sections 65-66 of the Evidence Act for allowing them to prove the aforesaid agreement by way of secondary evidence.

Vide impugned order the Petitioners were allowed to lead the secondary evidence subject to proof of existence and loss of the said agreement.

Challenging the aforesaid order, counsel for the Petitioners vehemently argued that no case is made out for leading additional evidence by the Plaintiffs-Respondents, as requirements of Sections 65 and 66 of the Evidence Act are not fulfilled in the present case and thus the impugned order is liable to be set aside.

I have heard learned Counsel for the Petitioners and perused the impugned order and other documents placed on record of this petition.

As per the pleadings of the parties, execution of the agreement dated 25.11.2005 has been admitted whereas Petitioners have denied the execution of the agreement dated 15.12.2006. It is also not in dispute that the Plaintiffs-Respondents had earlier moved an application under Order 11 Rule 14 CPC before the trial Court directing the Defendants/Petitioners to produce the agreements dated 25.11.2005 and 15.12.2006. However, learned Counsel for the Petitioners made a statement that the original agreements, as aforesaid, were not in their possession. On the other hand, it is the specific case of the Plaintiff-Respondents that the aforesaid agreements were in possession of the Defendants, although photocopies of the aforesaid agreement and the register of the scribe, where the contents of those agreements have been recorded, as well as copy of the register of the stamp vendor showing that the Defendants have purchased the stamp paper for execution of the agreements, were available. Since, Defendants/Respondents in reply to the application under Order 11 Rule 14 CPC have specifically denied the possession of agreements dated 25.11.2005 and 15.12.2006, the requirements of Section 65(a) and 66 of the Indian Evidence Act, have been fulfilled as admittedly, in reply to the interrogatories issued to the Petitioners, the possession of the original documents sought to be produced by way of secondary evidence, were denied.

Even otherwise, the Petitioners have not denied the existence of agreement and only date of agreement has been disputed. Moreover, Plaintiffs-Respondents have been allowed to lead secondary evidence regarding agreement dated 15.12.2006 subject to proof of its existence and loss.

Therefore, no interference is warranted in the impugned order by this Court invoking its jurisdiction under Article 227 of the Constitution of India.

Dismissed.