Gurditta vs Balkar Singh and another

J.V. Gupta, J.—This petition is directed against the order of the trial court dated 17th August, 1987, whereby the application for leading secondary evidence filed by the Defendant-Respondent Balkar Singh was allowed.

2 According to the Defendant, the Plaintiff had entered into an agreement of sale dated 18th August, 1984; that the said agreement was in his possession but had been lost while he was going from his village to New Courts, Jalandhar on 14.11.1985 on cycle; that the bag containing the said agreement along with certain other documents fell on the way near Bhagat Singh Chowk, Jalandhar, and could not be traced out despite the best efforts; that an F. I. R. in this connection was lodged at Police Station on 14th November, 1985, and that photostat copy of the agreement was on the file. It was, therefore, prayed that since he could not produce the original agreement on record, he may be permitted to lead secondary evidence with respect thereto. The application was resisted on the ground that there was never any agreement dated 18th August, 1984, as alleged that the Defendant could not be allowed to produce on record any agreement which was never mentioned in the written statement; that the question of its loss never arose, as it never existed and was never executed between the parties. According to the Plaintiff, the Defendant had forged some agreement in order to avoid prosecution. The learned trial court allowed the said application without giving any reasons. It was simply stated that "Without commenting on the merits of the documents in question in the instant case I allow the Defendant/applicant, permission to lead secondary evidence regarding the alleged agreement dated 18th August, 1984, subject, however, to his proving the due execution of the same and loss thereof."

The learned Counsel for the Plaintiff/Petitioner submitted that this agreement never existed; the suit was filed on 9th May, 1985 whereas the written statement was filed by Balkar Singh, Defendant, on 25th July, 1985; that no such plea was taken in the written statement though the alleged FIR was lodged on 14th November, 1985; that if any such agreement was in existence at the time of filing of the written statement, a plea to that effect must have been taken by the Defendant; moreover, it was wrongly stated by the Defendant that the photo state copy of the said agreement was already on the record. According to the learned Counsel further, the same was filed along with application dated 16th July, 1987, seeking permission to lead secondary evidence.

At the time of motion hearing, record of the suit was sent for as there was some dispute as to when the photostat copy of the agreement was filed. In this Court an affidavit dated 3rd December, 1987 was filed by Balkar Singh that the copy of the disputed agreement to sell was filed on 21st October, 1985, and it was on the record since then. The learned Counsel for the Defendant-Balkar Singh was unable to support this averment made in the affidavit, from the record it appears that the photo stat copy bad been filed for the first time on 16th July, 1987, along with the application.

It may be stated that the suit was filed on 9th May, 1985, whereas the present application was filed after more than two years, alleging some agreement of sale between the parties Thus, taking into consideration the facts and circumstances of the case and the fact that the said agreement to sell was never pleaded in the written statement, there was no occasion for the trial court to allow the Defendant to lead secondary evidence, particularly when the existence of the original document was not proved. The observations made by the trial Court that the secondary evidence is allowed subject to his proving the due execution of the agreement and loss thereof was wholly irrelevant because the secondary evidence could be allowed only if the existence of the original agreement was proved in the first instance. It, therefore, appears that the affidavit filed by Balkar Singh in this Court was not in accordance with the record Consequently, this petition succeeds the impugned order is set aside and the application for leading the secondary evidence is dismissed with costs, assessed to be Rs. 500/-.

The parties are directed to appear in the trial Court on 6.2.89. Records be sent back forthwith.