C.R. No. 895 of 2009 1
IN THE PUNJAB AND HARYANA HIGH COURT AT
CHANDIGARH
C.R. No. 895 of 2009 (O&M)
Date of Decision : 26.8.2009
Angrej Chand
.......... Petitioner
Versus
Pawan Kumar
...... Respondent
CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA
Present : Mr. Sherry K. Singla, Advocate
for the petitioner.
Mr. P.K.S. Phoolka, Advocate
for the respondent.
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VINOD K. SHARMA, J. (ORAL)
This revision petition is directed against the order dated
24.1.2009 passed by the learned Civil Judge ( Jr. Divn.), Talwandi Sabo
vide which application moved by the petitioner to lead secondary evidence
to prove the deed of family settlement dated 28.4.1994 and receipt dated
11.5.1994, has been allowed.
The plaintiff / petitioner filed a suit for possession by way of
partition of the suit property. The suit was contested by taking a plea therein
that the property in dispute is under the ownership and possession of the
defendant/ respondent.
In order to prove the case, the defendant / respondent moved an
C.R. No. 895 of 2009 2
application for grant of permission to lead secondary evidence on the plea
that the original agreement and receipt were handed over to the petitioner /
plaintiff, but he wrongly denied the family settlement. It was also the case of
the respondent, that the family settlement and receipt are in possession of
the plaintiff / petitioner, who has failed to produce the same, therefore,
necessity arose to prove the documents by way of secondary evidence.
The application was opposed on the plea, that the defendant /
respondent concealed the material facts, as in the civil suit No. 723 of
23.11.1998 filed by the defendant / respondent, the respondent had
produced the said writing, but these were disregarded being not admissible
in evidence, being unregistered document.
The suit filed by the defendant / respondent was consequently
dismissed, the appeal also failed. The order attained finality.
Subsequent to filing of the suit, the plaintiff / petitioner also
filed a suit for permanent injunction restraining the defendant / respondent
from interfering in his possession, but he also failed, as the defendant /
respondent were held to be in possession of the suit property. The suit of
partition was thereafter filed.
The learned trial Court accepted the application primarily on
the ground, that the conditions necessary for allowing secondary evidence
stood proved, as it was averred by the defendant / respondent that the
original was in possession of the plaintiff, who failed to produce it in spite
of notice. The learned trial Court held that the merits of the case could not
be gone into as the legality of the document as to whether the document is
C.R. No. 895 of 2009 3
admissible or inadmissible was to be seen at the time of final arguments.
The learned counsel for the petitioner challenged the impugned
order primarily on the ground, that the document now sought to be proved
by way of secondary evidence has been rejected inter se between the parties,
in the previous suit by holding, that the family settlement cannot be read in
evidence for want of registration.
Once as document cannot be read in evidence in view of the
decision inter se between the parties there was no reason for the Court to
have allowed the secondary evidence, as no useful purpose is likely to be
served, even if the defendant / respondent proved the document, as it could
not read into evidence for want of registration, and in view of finding
recorded inter se in earlier suit.
The learned counsel for the respondent contends, that in view
of the law laid down by the Hon’ble Supreme Court in the case of Nawab
Singh Vs. Inderjit Kaur 1999(2) Apex Court Journal 50, this Court at this
stage cannot reject the application for additional evidence as it is not open
to the Court to take note of the fact that the documents sought to be
produced is of doubtful veracity, as this opinion is to be formed after the
parties lead evidence. This contention of the learned counsel for the
respondent cannot be accepted. It is not a case where the veracity of the
document is disputed. This document has been rejected to be read in
evidence, therefore, the impugned order cannot be sustained as it would
only delay the proceedings. The additional evidence will not in any way
advance the case of respondent / defendant, even by proving this document
C.R. No. 895 of 2009 4
by way of additional evidence.
This revision petition is allowed, the impugned order is set
aside. The application moved by the respondent / defendant for leading
secondary evidence is ordered to be dismissed but with no order as to costs.
26.8.2009 ( VINOD K. SHARMA ) 'sp' JUDGE