Hira and another vs Smt. Gurbachan Kaur

A.L. Bahri, J.—This revision petition has been filed on behalf of the plaintiffs against the order dated October 24, 1986 passed by Sub Judge IInd Class, Jagadhri whereby application filed by the plaintiffs for leading secondary evidence to prove agreement to sell was declined.

Hira and another filed a suit for specific performance of agreement to sell dated July 9, (sic) on payment of the balance of sale consideration. This suit was contested on behalf of Gurbachan Kaur, the defendant, inter-alia alleging that the said agreement photo-copy of which was filed with the plaint, was false and fabricated one. After the necessary issues were framed, the case proceeded for recording evidence on behalf of the plaintiffs. After some evidence was led and the case was adjourned for remaining evidence of the plaintiffs being last opportunity allowed to them, an application was filed for leading secondary evidence of agreement to sell alleging therein that the agreement had been lost. This application was contested which resulted in passing of the impugned order.

Shri M.S. Sullar, Advocate, for the petitioners, has argued that the trial Court ought to have afforded an opportunity of leading evidence that the agreement to sell had been lost before deciding the application for leading secondary evidence. However, I find no force in this contention. Certified copy of the reply filed to the said application on behalf of Gurbachan Kaur has been produced in this revision petition which has, been perused. It was alleged on behalf of the defendant that the application was not maintainable being vague and was not verified. It was not supported by any affidavit. The case was fixed for the evidence of the plaintiffs and last opportunity was allowed by the Court when the application was filed. Section 65(c) of the Evidence Act reads as under:-

Secondary evidence may be given of the existence, condition or contents of a document in the following cases:-

xxxx xxxx xxxx xxxx

(c) when the original has been destroyed or lost or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time:

xxxx xxxx xxxx xxxx.

In order to allow secondary evidence, it is incumbent upon the party to show that the original had been destroyed or lost or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time. When the present suit was filed by the plaintiffs, no averment was made, as is admitted by the counsel for the petitioners, that the original agreement to sell had been lost or destroyed or was not otherwise available. Only photo-copy of the agreement to sell was filed with the plaint. I have already referred to above regarding the plea taken by Gurbachan Kaur, the defendant, that the alleged document was false and fabricated. Even when issues were framed, the original agreement to sell was not produced on behalf of the plaintiffs. It was only after allowing 2/3 opportunities to produce evidence that the last opportunity was allowed to the plaintiffs to produce the evidence, that the plaintiffs came for-ward with such an application without mentioning therein as to when and under what circumstances the original agreement to sell was lost. When the plea was vague, as stated above, which was not supported by any affidavit, it was not required of the trial Court to afford any opportunity of leading evidence on this point.

Reference has been made to a decision of R.N. Mittal J. in Balbir Singh and another v. Smt. Darshan Kaur (1976) 78 P.L.R. 239, wherein while accepting the revision petition, the case was remanded to the trial Court with the direction to decide the matter afresh in accordance with the observations made therein. In para 5 of the judgment it was observed as under:-

After carefully going through the (Section 65(c) of the Evidence Act), the only interpretation which is possible, is that if the Court comes to a conclusion that the will has been lost or destroyed, it has to allow the party concerned to lead secondary evidence and in case it comes to the conclusion that it cannot be produced in reasonable time for any other reason, then it has also to take into consideration the conduct of that party. The learned Court has not given any finding as to whether the will had been destroyed or lost or whether the plaintiffs were not producing it on account of any other reason.

The petitioner cannot take any advantage from the observations referred to above. That was a case wherein from the very beginning the stand was that the will had been lost and secondary evidence was to be led whereas in the case in hand, no allegation was made at the time of filing of the suit that the agreement to sell had been lost or destroyed. Although 2/3 opportunities were afforded to the plaintiffs after framing the issues to lead evidence, no evidence was led to prove the agreement. It was subsequently that such an application was filed with vague allegations. It appears that the plaintiffs were not producing agreement to sell intentionally and they wanted to fight the litigation by leading secondary evidence and they had been confronted with the plea of the defendant that the original alleged agreement to sell was false and fabricated. The trial Court under the circumstances stated above was justified in declining the request.

For the reasons recorded above, this revision petition fails and is dismissed affirming the order of the trial Court dismissing the application for leading secondary evidence. No order as to costs.