Gurmeet Singh And Ors vs Gurdeep Singh And Ors

By way of the present writ petition, the petitioner has laid challenge to the order dated 07.01.2019, passed by the learned Additional District Judge, No.2, Hanumangarh (hereinafter referred to as 'the trial Court'), vide which the court below has allowed the application dated 09.03.2018, filed by the plaintiffs - respondents herein, under Section 65 of the Evidence Act.

The brief facts of the case are that the plaintiffs filed a suit for cancellation of Will dated 06.11.2012. During the pendency of the suit, the plaintiffs had filed an application dated 10.01.2018, under Order XI Rules 12 and 14 of the Code of Civil Procedure requiring the defendants to produce original compromise dated 10.04.2013. As the defendants have refused the possession of the said compromise dated 10.04.2013, the trial Court was constrained to reject the plaintiffs' said application under Order XI Rules 12 and 14 of the Code of Civil Procedure.

Faced with such situation, the plaintiffs produced a photo copy of the compromise dated 10.04.2013 and requested the Court to permit them lead secondary evidence, in the form of photo copy of the document dated 10.04.2013.

The learned trial Court allowed the plaintiffs' application for leading secondary evidence, inter alia observing that the defendants have not refused the existence of the compromise dated 10.04.2013 and when the defendant No.2 had refused to produce the original thereof despite request, it was in the interest of justice that the plaintiffs be permitted to lead secondary evidence in this regard.

Mr. Dron Kaushik, learned counsel for the petitioner, submitted that the trial Court has seriously erred in allowing the subject application dated 09.03.2018, filed by the respondents-plaintiffs and permitting them to lead secondary evidence of the compromise dated 10.04.2013. He submitted that the plaintiffs had not asserted that the photostat copy of the compromise dated 10.04.2013 is a mechanically generated document from the original. In support of his arguments, learned counsel for the petitioner cited the following judgments:-

(1) Mahendra Singh Vs. Kaptan Singh & Anr. [2015 (Suppl.) CCC 340 (P & H)

(2) Bachu Laxmipathi Vs. Bachu Kistaiah & Anr. [2015(4) CCC 810 (Hyderabad)

(3) Gopal Lal Vs. Shri Nathu Ram & Ors. [2016(3) CCC 405] (Rajasthan).

As far as the first judgment in case of Mahendra Singh (supra) is concerned, the Punjab & Haryana High Court has held that the secondary evidence can be permitted only when the loss of original document is proved.

In the considered opinion of this Court, when at the initial stage, the respondents filed an application under Order 11 Rules 12 and 14 of the Code of Civil Procedure requiring the defendants to produce the original of the document dated 10.04.2013, it was clear that the original of the compromise dated 10.04.2013 was not in their possession. In this view of the matter, it was clear that the original was not available with the plaintiffs. As such, this judgment in a way supports the cause of the plaintiffs-respondents.

As far as the second and third judgments are concerned, same only deal with the admissibility of the document. In both the cases, the Courts have affirmed the rejection of application under Section 65 of the Evidence Act, as the original document itself was inadmissible in evidence. Facts in the present case are entirely different; there is no quarrel about admissibility of compromise dated 10.04.2013.

In considered opinion of this Court, the learned trial Court has committed no error of law in allowing the plaintiffs' application dated 09.03.2018 and permitting them to lead secondary evidence of the compromise dated 10.04.2013.

The writ petition is, thus dismissed.

The stay application No.2781/2019 is also dismissed.