Mohinder Ram and Others vs Joginder Singh and Others

Ram Chand Gupta, J.

C.M. No. 3956-CII of 2011

Application is allowed subject to all just exceptions.

Civil Revision No. 949 of 2011

The present revision petition has been filed under Article 227 of the Constitution of India for setting aside order dated 17.12.2010 passed by learned Civil Judge, Junior Division, Jalandhar, Annexure P3, vide which application of the Petitioners for permission to lead secondary evidence has been dismissed.

I have heard learned Counsel for the Petitioners and have gone through the whole record carefully including the impugned order passed by learned trial Court.

Brief facts relevant for the decision of present revision petition are that a suit for mandatory injunction was filed by Petitioner-Plaintiffs directing Respondent -Defendant Nos. 1 to 6 to close windows, doors, ventilators, parnala and drain of their houses, as shown in the private street of the Plaintiffs, shown in red colour in the site plan in khasra numbers, fully described in the heading of the plaint, with a relief of permanent injunction restraining the Defendants from using the private street in dispute belonging to the Plaintiffs.

Suit was contested by Respondent-Defendants. Issues were framed and the case was fixed for evidence of Petitioner-Plaintiffs. After taking so many opportunities for evidence, the present application, Annexure P1, was filed on behalf of the Petitioner-Plaintiffs for permission to lead secondary evidence to prove alleged exchange agreements dated 12.11.2003 and 20.10.2003, executed by Swaran Kaur in favour of Mohinder Ram, Balbir Singh and in favour of Subhash Chander Jassi, Rakesh Kumar Jassi, Mukesh Kumar Jassi, all sons of Shri Sukhdev Raj and Kuldip Singh, which was dismissed by learned trial Court by observing as under:

The applicant/Plaintiffs have alleged that they had produced the original exchange deed dated 12.11.2003 and 20.10.2003 before the Revenue Officer for sanctioning of mutation in their favour but the same was lost by the Revenue Officer but they have failed to bring on record any proof of the loss of the said document by the Revenue Officer. The statement of concerned Revenue Officer to this fact has not been proved on record. Moreover, the applicants have not stated when they had presented the said document before the Revenue Officer and when the same had been lost. No DDR to this fact has been got recorded by the Plaintiff regarding the loss of the document in question. This application seems to be nothing but mere tool to fill up the lacuna. Accordingly, the application under consideration being devoid of merits is hereby dismissed. Now to come up on 17.1.2001 for evidence of the Plaintiff subject to last opportunity. It is made clear that no more opportunity will be granted to the Plaintiffs to conclude the evidence.

It is pertinent to reproduce the application, Annexure P1, filed by Petitioner-Plaintiff for permission to adduce secondary evidence, which reads as under:

Application for the grant of permission to lead secondary evidence to prove exchange agreement dated 12.11.03 and 20.10.03 executed by Swaran Kaur in favour of Mohinder Ram, Balbir Singh in respect of property in dispute andexecuted by Swaran Kaur in favour of Subhash Chander Jassi,Rakesh Kumar Jassi, Mukesh Kumar Jassi all sons of ShriSukhdev Raj and Kuldip Singh (Kuldip Ram).

Sir,

It is respectfully submitted as under:

That the above noted case is pending before this Hon''ble Court and is fixed for today.

That the applicant/Plaintiff produced the original agreement dated 12.11.03 and 20.10.03 mentioned in the headnote of the application for sanctioning the mutation before the Revenue Officer. Now the said agreement has been misplaced and is not traceable in spite of best efforts made by the Plaintiff and revenue officer. Though the mutation had already been sanctioned on the basis of said documents.

That proving of the other exchange agreement is very much essential for the just and fair decision of the case by way of secondary evidence due to loss of original.

It is, therefore, prayed that the applicant may kindly be allowed to prove the above said exchange agreements dated 12.11.03 and 20.10.03 by way of secondary evidence in the interest of justice.

A perusal of the application shows that the same is a vague one. The requisite particulars for permission to lead secondary evidence of a document, as required u/s 65 of the Evidence Act, have not been given. Even it has not been mentioned as to when the said alleged original exchange deeds were lost. Arguments of learned Counsel for the Petitioners that the same were lost by Revenue Officer cannot be accepted. Even no DDR regarding loss of said documents has been lodged with the police. Documents after alleged sanction of mutation were not required to be with the revenue officer.

Hence, in view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned trial Court in passing the impugned order and that grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court.

Moreover, law is well settled in Surya Dev Rai v. Ram Chander Rai and Ors. 2004 (1) RCR 147 that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction by this Court. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and a grave injustice or gross failure of justice has occasioned thereby.

Hence, the present revision petition is hereby dismissed being devoid of any merit.