Smt. Satya Devi and Others vs Joginder Kumar and Others

L.N. Mittal, J.—Legal representatives of original plaintiff Lehna Ram, since deceased, have filed the instant revision petition under Article 227 of the Constitution of India assailing order dated 20.12.2010 (Annexure P-6) passed by learned Civil Judge (Junior Division), Ambala thereby allowing application moved by defendant No.4 Karam Chand for secondary evidence of registered sale deed dated 10.09.2002.

Defendant No.4 alleged that original sale deed had been lost and, therefore, he should be allowed to lead secondary evidence of the sale deed.

Plaintiffs opposed the application alleging that loss of the aforesaid sale deed has not been proved and, therefore, secondary evidence thereof cannot be permitted.

Learned trial Court allowed the application of defendant No.4 for secondary evidence of the sale deed vide impugned order Annexure P-6, which is under challenge in this revision petition.

I have heard counsel for the parties and perused the case file.

Counsel for the petitioners contended that loss of the sale deed is not proved and, therefore, secondary evidence thereof cannot be permitted. The contention cannot be accepted. Trial Court has observed in the impugned order that existence and loss of the sale deed cannot be pre-determined without giving opportunity to the parties to prove the same. Consequently, defendant No.4 has yet to prove loss of the original sale deed and subject to proof thereof only, the secondary evidence of the sale deed shall be admissible.

Counsel for the petitioners also contended that aforesaid sale deed has already been set aside vide judgment and decree dated 20.12.2002 Annexure P-3 holding it to be null and void. However, what is the evidentiary of the sale deed, would be adjudicated upon by the trial Court while deciding the suit. At the stage of permitting secondary evidence of the sale deed, its evidentiary value cannot be assessed. Effect of judgment and decree Annexure P-3 regarding probative value of the sale deed can be determined by the trial Court while deciding the suit. Judgment of Supreme Court in case of H. Siddiqui (dead) by L.Rs. Vs. A. Ramalingam, cited by counsel for the petitioners has no applicability to the facts of the instant case. It was observed in the said judgment that the copy of original, sought to be produced as secondary evidence, has to be authenticated as being in fact a true copy of the original. Defendant No.4 while leading secondary evidence has, of course, to prove that copy of the sale deed sought to be produced as secondary evidence is true copy of the original sale deed. However, without giving opportunity to defendant No.4 to produce the proposed secondary evidence, the same cannot be shut out at the threshold. If defendant No.4 is able to prove the copy of the sale deed to be true copy of the original, only then the same can be admitted in evidence and taken into consideration.

For the reasons aforesaid, I find no merit in the instant revision petition. Defendant No.4 has been rightly permitted to lead secondary evidence of the sale deed, existence whereof is not even disputed by the petitioners although alleged to be sham transaction. There is no perversity, illegality or jurisdictional error in the impugned order of the trial Court so as to warrant interference by this Court in exercise of revisional power. The revision petition is accordingly dismissed.