Surat Singh and Another vs Mohan Lal and Others

Paramjit Singh, J.—Instant revision petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 20.03.2006 (Annexure P-7) passed by learned Civil Judge (Jr. Divn.), Nawanshahr whereby application moved by respondent No. 1/defendant for leading secondary evidence has been allowed. Shorn of unnecessary details, the facts relevant for disposal of the present petition are to the effect that the petitioners-plaintiffs filed suit for possession by way of specific performance on the basis of agreement to sell dated 26.06.1998. During pendency of suit, respondent-defendant No. 1 moved application for proving agreement to sell dated 06.01.1998 and a panchayati agreement alleged to have been entered between the parties by way of secondary evidence. Vide impugned order dated 20.03.2006, the trial Court allowed the application of respondent No. 1 for leading secondary evidence. Hence, this revision petition.

I have heard learned counsel for the parties and perused the record.

Learned counsel for the petitioners has contended that the documents sought to be produced by respondent No. 1 had neither been pleaded in the written statement, nor were these brought on record during the course of trial. The learned counsel has further contended that earlier, respondent No. 1 moved application for amendment of written statement wherein pleadings in respect to those documents were sought to be added, but the said application was dismissed on 07.09.2005 passed by the trial Court. Once the prayer for amendment of written statement by mentioning these facts has been dismissed, secondary evidence of these documents cannot be allowed. The learned counsel has further contended that any document which is beyond pleadings cannot be even taken into evidence what to talk of proving them by secondary evidence. The learned counsel has further contended that otherwise also, the petitioners have not admitted the documents in question and once there is no admission, then respondent No. 1 who moved application for leading secondary evidence is first required to prove existence and loss of the documents. The learned counsel has further contended that question of leading secondary evidence will only arise, if respondent No. 1 moves application for additional evidence of those documents and straightway such an application cannot be allowed.

On the other hand, learned counsel for respondent No. 1 has vehemently contended that foundation with regard to panchayati compromise and agreement to sell dated 06.01.1998 has been laid in the earlier written statement. Although application for amendment has been declined, but still respondent No. 1 has right to lead evidence with regard to documents in question by way of secondary evidence. The agreement to sell dated 06.01.1998 has been virtually admitted by the petitioners in the earlier proceedings and has referred to para No. 1 of application for amendment of written statement and its reply. The learned counsel has further contended that vide order dated 07.09.2005, application for amendment of written statement has been declined wherein reference to the alleged agreement to sell dated 06.01.1998 was made. Respondent No. 1 has specifically made out a case for leading secondary evidence by pleading all the ingredients. The learned counsel has further contended that the present controversy in hand falls u/s 65A of the Indian Evidence Act. The learned counsel has further contended that evidence of respondent-defendant No. 1 is going on and he wants to lead secondary evidence in respect of agreement to sell dated 06.01.1998 and panchayati compromise in his evidence and there is no question of leading additional evidence.

I have considered the rival contentions of learned counsel for the parties.

The main contention of learned counsel for the petitioners is that the documents in question have not been pleaded in the written statement and only vague averments have been made. So far as this contention is concerned, the same has no merit, as every minute detail is not required to be mentioned in the written statement. A party leading evidence will be at liberty to lead evidence according to its choice, however, the opposite party has right to object the same claiming that it is beyond pleadings. Nevertheless evidentiary value is to be seen by the trial court at the time of final decision of the case. So far the contention of learned counsel for the petitioners in respect of declining application for amendment of written statement is concerned, the same is misconceived, as declining of amendment specifically in written statement will not affect the rights of respondent No. 1 to lead evidence.

So far as the contention of learned counsel for the petitioners in respect of existence and loss of documents is concerned, the trial Court has recorded categoric finding that existence and loss of the documents in question are required to be proved by applicant-respondent No. 1, only then the secondary evidence will be allowed to be led. Even the application for leading secondary evidence has been allowed by observing that application for leading secondary evidence is allowed, subject to prove of existence and loss of the documents in question.

In view of above, I do not find any illegality or perversity in the impugned order dated 20.03.2006 (Annexure P-7).

Dismissed. However, the petitioners will be at liberty to raise all the objections before the trial court with regard to admissibility of the documents in question being beyond pleadings and their effect will be seen at the time of final decision of suit.