S.B.Civil Misc. Appeal No.531/06
Aladeen vs. Smt. Wahida & ors.
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S.B.Civil Misc. Appeal No.531/06
Aladeen vs. Smt. Weahida & ors.
Date of Order: 11.12.2008.
PRESENT
HON'BLE MR. PRAKASH TATIA, J.
Mr. Nitin Trivedi for the appellant.
Mr. Ajay Vyas for the respondents.
…
Heard learned counsel for the parties.
The appellant is aggrieved against the order dated 9.3.2006
by which the review was allowed by the trial court and the trial
court set aside its earlier order dated 14.2.2005 passed on
defendant’s application filed under Order 11 Rule 12 and 14 read
with 151 CPC.
Brief facts of the case are that the plaintiffs filed suit for
permanent injunction against the appellant-defendant wherein the
appellant-defendant submitted that the plaintiff was married to
his brother Rajak Ali but she was divorced on 20.4.1994. For this
purpose, a Talaknama was executed on 20.4.1994. The original
Talaknama is in possession of the plaintiff and the photo-stat copy
was produced before the trial court by the defendant. The
defendant-appellant prayed that original Talaknama may be
summoned from the plaintiff. The plaintiff herself in reply to the
said application stated that her husband is not found since last
more than seven years and, therefore, a presumption may be
S.B.Civil Misc. Appeal No.531/06
Aladeen vs. Smt. Wahida & ors.
2
drawn about his civil death. She denied execution of any
Talaknama. However, the trial court yet directed the plaintiff-
respondent to produce the Talaknama original in the court. Being
aggrieved against the trial court’s said order dated 14.2.2005, the
plaintiff submitted a review application which was allowed by the
trial court on the ground that inadvertently it has been taken that
the copy of the Talaknama was produced by none else but the
plaintiff herself. There are other reasons given by the trial court
for setting aside the order dated 14.2.2005.
It appears that despite the fact that the plaintiff denied the
existence of the Talaknama dated 20.4.1994, the trial court
without holding an enquiry about the existence of the original
document and it’s being in the possession of the plaintiff, directed
the plaintiff to produce the document. Said order has been set
aside by the court by review order dated 9.3.2006. In the facts of
the case, when the existence of original document is in dispute as
disputed by the plaintiff then it will be appropriate that in case
the appellant submitted an application for producing the secondary
evidence with respect to the copy of the Talaknama dated
20.4.1994 produced by him, then after giving opportunity to the
plaintiff, the issue can be decided by the trial court whether to
grant permission for taking in evidence the photo-state copy of the
Talaknama in view of the fact that the original is admittedly not in
possession of the appellant-defendant and the plaintiff is denying
its existence.
S.B.Civil Misc. Appeal No.531/06
Aladeen vs. Smt. Wahida & ors.
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Therefore, the appeal of the defendant-appellant is disposed
of with liberty to the appellant to move an application under
Section 65 of the Evidence Act before the trial court and the trial
court is directed to decide the application after giving full
opportunities of hearing to the parties.
(PRAKASH TATIA),J.
Mlt