Ranjit Singh and Others vs Nihal Singh @ Nihala and Another

N.C. Jain, J.—This revision petition has been filed primarily against order dated 6-2-1990 by which application filed by defendants Nos. 1, 2, 3-petitioners for production of secondary evidence has been dismissed.

The petitioners wanted to produce the scribe and the entries in the Register of the petition writer to prove the agreement of sale executed by Khet Singh son of Sawal Dan Singh resident of Dandusar, Rajasthan, dated 29-3-1983 in favour of Ram Kishan defendant No. 4.

The application was opposed by the contesting respondents of this revision petition on the ground that the same did not fulfil the requirement of Section 63 of the Evidence Act as it was not stated in the application as to in whose possession the aforesaid agreement was. On the basis of the plea raised by the contesting respondents, the application was dismissed just by making the following observations :--

"Neither it is stated in whose possession the said agreement for the foregoing reason, I hereby dismiss the application."

The order dated 6-2-1990 read as a whole hardly shows any cogent reasoning. The petitioners might not have stated in so many words in the application for production of secondary evidence that the agreement of sale was in possession of a particular party. However, the sum and substance of paragraph-2 when read as a whole is this, that Ram Kishan vendor-defendant No. 2 got executed the agreement dated 29-3-1985 in his favour for the purchase of agricultural land and that the petitioners filed an application for production of the agreement from him in the Court of Subordinate Judge and in reply the learned counsel for Ram Kishan-respondent has denied the existence of the agreement itself and refused to produce the said agreement. Once notice of production of the document has been served upon a person in whose possession the document has been alleged and there is a refusal to produce the same; the requirement of law as laid down in Section 65A of the Evidence Act is fulfilled. In view thereof, the learned Subordinate Judge should have allowed the application for production of secondary evidence particularly when the secondary evidence sought to be produced consists of entries in the Register of the petition writer and the scribe was to be produced as a supporting witness.

For the foregoing reasons this Court is of the considered view that a good case for production of secondary evidence within the meaning and ambit of Section 65A of the Evidence Act has been made out and consequently the application for production of secondary evidence deserves to be allowed. Consequently the revision petition is allowed and the order dated 6-2-1990 is quashed. However, by way of clarification it is added that it is ultimately for the trial Court to see what evidentiary value the secondary evidence would carry. Anything observed herein would not amount to any expression of opinion as regards the authenticity or otherwise of the secondary evidence.

In consequence of the acceptance of the revision petition setting aside the order dated 6-2-1990, the order dated 8-3-1990 passed on the basis of review application dated 2-3-1990 is also set aside. Since the evidence of the petitioners was closed on the day when review application was dismissed and that an additional issue was framed, it would be in the interest of justice to allow the petitioners to lead not only secondary evidence but other evidence as well on the additional issue which has been framed on 8-3-1990. There will be no order as to costs. The parties through their counsel are directed to appear before the trial court on the date fixed.