Smt. Dalbir Kaur vs Smt. Amar Kaur

Rajendra Nath Mittal, J.—This is a revision petition by the defendant against the order of the Subordinate Judge, Batala, dated October 5, 1977.

Briefly the facts of the case are that Smt. Amar Kaur, on December 29, 1971, gave the possession of the property in dispute to her son. Dildar Singh, as a licencee. He died on September 26, 1975, leaving behind Smt. Dalbir Kaur, widow. It is alleged by the plaintiff that during the life time of Dildar Singh, her relations with him became strained and consequently she cancelled his licence in October, 1974. It is further alleged that the licence, at any rate, stood revoked on the death of her son She consequently filed a suit for mandatory injunction against Dalbir Kaur defendant praying that she be directed to restore the possession of the property to the plaintiff. The suit was contested by the defendant wherein she pleaded that she was in lawful possession of the property on the terms and conditions of the agreement dated December 29, 1971.

The defendant filed an application that she may be allowed to produce in evidence, secondary evidence of the agreement dated December 25, 1971 as the counsel for the plaintiff had made a statement that it was not in her (Plaintiff''s) possession. The application was opposed. The trial court disallowed the prayer of the defendant and dismissed the application. She has come up in revision against the order of the trial court to this court.

The only question that arises for determination is whether the petitioner should have been allowed to lead secondary evidence of the agreement dated December 29, 1971. It is stated by the counsel for the petitioner that the agreement dated December 29, 1971 which is sought to be produced by the petitioner, is a registered document and she has produced its copy obtained from the registration department. It is not disputed that the counsel for the plaintiff had made a statement in the court that the document was not in possession of the plaintiff. Section 65 of the Evidence Act relates to the cases in which secondary evidence relating to the document may be given. According to the section, secondary evidence may be given of the existence, condition, or contents of a document, inter alia, on the ground that the original is shown or appears to be in possession or power of the person against whom the document is sought to be proved. In the present case, the deed of licence is alleged to have been executed between Smt. Amar Kaur, plaintiff, and her son Dildar Singh. The nature of the document is such that it ought to be in the possession of the plaintiff. A notice was given to her counsel to produce the said agreement but the same was not produced on the ground that it was not in her possession. In the circumstances, in my view, a case has been made out u/s 65 to lead secondary evidence, by the defendant.

Mr. Majithia, learned counsel for the respondent has vehemently argued that unless the plaintiff gives evidence that the document was in possession or power of the plaintiff, the Court could not allow the defendant to lead secondary evidence. I am not convinced with the argument. The facts and circumstances of each case have to be taken into consideration while deciding the case. Section 65 clearly says that if the original appears to be in possession or power of the person against whom the document is sought to be proved, secondary evidence can be allowed to be given by the other party. From the language of the section it is evident that it is not in all cases that the original is to be shown to be in possession of the party against whom the document is sought to be proved. From the nature of the document, if it appears that it should be in the possession of that party, secondary evidence may be allowed to be given, Mr. Majithia referred to Laxman Ganpati Khot and Others Vs. Anusyabai and Another, Parsa Singh v. Smt. Parkash Kaur (1976) 78 P.L.R. 21, Rabinder Singh v. Hardial Singh 1978 C. L.J. 256. In regard to the aforesaid cases, suffice it to say that they are distinguishable and the observations in them do not apply to the present case.

Mr. Majithia, learned counsel for the respondent then sought to urge that the revision petition was not maintainable in view of the proviso to section 115 of the Code of Civil Procedure. In support of his contention, he placed reliance on Hardwari Lal v. Pokkar Mal (1978) 80 P.L.R. 252 etc. Wherein it has been observed that after the amendment, the High Court is debarred, under this section to very or reverse any order passed in the course of a suit unless it finds that the said order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or if that order is allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. Mr. Majithia has drawn my attention to the language of the proviso added by CPC (Amendment) Act, 1976.

I regret my inability to accept the contention of the learned counsel. The High Court can revise an order of the Subordinate Court if it falls under any of the clauses of Section 115 (1). Newly added proviso has placed some more restrictions on the powers of the High Court. Still the High Court can vary or reverse an order of the subordinate court if it would occasion a failure of justice or cause irreparable injury to the party against whom it was made. In Hardwari Lal''s case (supra), the learned Judge has also referred to that aspect of the matter. In the present case, the main defence of the defendant is that the house was given to Dildar Singh vide registered agreement dated December 29, 1971 without any rent for ten years. In case the defendant is not allowed to lead that evidence, an irreparable injury will be caused to her. In the aforesaid situation, the argument of the learned counsel has no merit.

For the reasons recorded above, I accept the revision petition with costs, set aside the order of trial Court and direct it to allow the defendant to lead secondary evidence regarding the agreement deed December 29, 1971. Counsel fee Rs. 100/-. The parties are directed to appear in the trial Court on May 19, 1978.