Sukhjinder Kaur vs Gurdip Kaur

Sat Pal, J.—This petition has been directed against the order, dated 19th August, 1997, passed by the Civil Judge (Junior Division), Ferozepore. By this order, the learned Civil Judge has dismissed the application dated 10th June, 1997, filed by the petitioner/plaintiff to adduce secondary evidence to prove execution of agreement of mortgage dated 6.3.1991.

Mr. Dhawan, learned counsel appearing on behalf of the petitioner submitted that the learned trial court was not correct in holding that the plaintiff was first required to prove the loss of alleged agreement and thereafter, he could file an application to adduce the secondary evidence. The learned counsel submitted that the loss of the document could be proved after the application to adduce secondary evidence was allowed by the learned trial court. In support of his submission, the learned counsel placed reliance on two judgments of this court in Shingra Singh v. Jawala Singh 1993(2) RRR 367 and Raj Kumari v. Lal Chand 1994(1) RRR 117.

I have given my thoughtful consideration to the submissions made by the learned counsel for the petitioner and have perused the impugned order. I, however, do not find any infirmity or illegality in the impugned order passed by the learned civil Judge. In para 7 of the impugned order, it has been stated that it was alleged by the plaintiff that he has handed over the alleged agreement of mortgage to Deputy Superintendent of Police but there is no effort to trace the agreement and no notice has been given to the D.S.P. to produce the agreement. In terms of Section 65(a) read with Section 66 of he Evidence Act, the direction to adduce the secondly evidence cannot be given to the party unless the party proves the loss of the original document. As stated herein above, if the agreement of mortgage was handed over to D.S.P., the plaintiff was at least required to make an effort to get back the said agreement from the D.S.P. or at least to give him notice to produce the said agreement. Since no effort whatsoever was made by the plaintiff to get back the alleged agreement from the D.S.P., the petitioner-plaintiff cannot be permitted to adduce the secondary evidence. The view I have taken finds support from a judgment of this Court in Smt. Shanti Devi v. Harbans Singh 1990(2) P.L.R. 228.

The judgment of this Court in the case of Raj Kutnari (supra) relied by the learned counsel for the petitioner is of no assistance to the petitioner as in that case, in the statements of the plaintiff and the petition writer, it had come on record that the plaintiff was not in a position to produce the document because the persons in whose possession the document could be found, were dead or had denied execution thereof but in the present case the alleged agreement is reported to be with the D.S.P. Again the judgment of this Court in the case of Shingara Singh (supra) is of no assistance to the petitioner as the facts of the present case are different from the facts of that case. In the present case as stated herein above, the document is alleged to have been handed over to the D.S.P. but no effort has been made by the plaintiff to get back the document nor he had given any notice to the D.S.P. to produce the document.

In view of the above discussion, I do not find any merit in this petition and the same is dismissed in limini.