IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. ORDER 6.8.2009. S.B. CIVIL WRIT PETITION NO.4114/2007 Navratanmal Jain Vs. Abhishek Mundra & Ors. HON'BLE MR. JUSTICE DALIP SINGH Shri J.P. Goyal, for the petitioner. Shri Rizwan Ahmed }for Shri Ajeet Bhandari} for the respondent No.2.}
Shri Guru Raj Sharma}, for the respondent No.1.
Heard learned counsel for the parties.
The defendant petitioner has filed this writ petition challenging the order Annexure-9 by which the application submitted by the defendant for permission to lead secondary evidence under Section 65 of the Evidence Act in respect of the agreement dated 2.10.1999 has been rejected.
Learned counsel for the petitioner submits that the petitioner had first filed an application Annexure-1 under Order 11 Rule 14 CPC for production of the agreement dated 2.10.1999 along with other documents. It is submitted that to the application Annexure-1 the plaintiff filed a reply which is Annexure-2 on record wherein the plaintiff raised certain objections with regard to the relevancy of the documents, but not in respect of its execution or existence. It is submitted that the learned trial court vide its order Annexure-4 allowed the application Annexure-1 to the limited extent whereby the learned trial court directed the plaintiff to produce before the court the agreement dated 2.10.1999. So far as the defendant petitioner’s prayer for production of the other documents as mentioned in the application Annexure-1 are concerned the same was rejected. The relevant portion of the order Annexure-4 dated 24.08.2004 allowing the application under Order 11 Rule 14 CPC reads as follows :
”??: ???????? ?????? ?? ???? ?? ????????? ????-1 ?? ?? ?? ????????? ????????? ???? ????????? ???? 11 ???? 14 ??.??.??. ?? ?? ?? ???????? ???? ???? ???? ?????? ???? ?? ?? ???? ????????? ?????? 2.10.99 ?? 23,51,000/- ????? ?? ??????? ???? ??? ??, ?? ????????? ??? ??? ???? ??? ??? ????????? ???? ????????? ???? ???? ???? ?????? ???? ???”
In the operative portion of the order the learned trial court directed as follows :
”????????? ????-1 ?? ?? ?? ????????? ????????? ???? ???? 11 ???? 14 ??.??.??. ????? ??? ?? ???????? ???? ???? ???? ?? ???? ???? ???? ?? ?? ?? ????????? ?????? 2.10.99 ?????? 23,51,000/- ????? ?? ???? ??? ???? ??? ???? ?????? ?? ???? ??? ?????????? ???? ???, ?? ????????? ??? ??? ????, ????? ??????????? ?? ????????? ???? ?? ????????? ????????? ?? ???? ???”
After the aforesaid order was passed on 24.08.2004 the plaintiff submitted his affidavit Annexure-5 before the learned trial court and submitted that the said document dated 2.10.1999 is not in his possession and as such he was unable to produce the same in court.
The relevant portion of the affidavit of the plaintiff which is Annexure-5 on record reads as follows :
”?? ?? ????????? ?????? ?????? 24.8.04 ?? ?????? ???????? ???????? ????? 2.10.99 ?????? 23,51,000/- {?????? ???? ??? ???????? ???? ?????} ???? ?????? ? ?????? ??? ???? ??? ??: ??? ???? ??? ?????? ????”
The defendant-petitioner filed an application before the learned trial Court seeking a direction that the plaintiff be directed to comply with the order dated 24.8.2004. The learned trial court vide Annexure-6 dated 7.2.2005 passed the following order :
”????????/????????? ?????? ?????? 16.12.2004 ?? ?? ????????? ???? ????????? ?? ????????? ?? ???? ??0 14.8.2004 ?? ???? ??? ??????????? ??? ?????? ????? ?????????? ?? ????????? ?????? ???? ?? ????????? ??? ?? ????? ??? ???? ?? ?????? 24.8.2004 ?? ?? ??? ???? ????????? ?? ???????? ???????? ???? ?????? ? ?????? ??? ???? ???? ?????? ???? ??? ?? ????? ??? ????????? ????????? ????????? ???? ????????? ???? ????????? ???? ?? ??? ????????? ????? ????????? ???? ?? ?????????????? ????????? ???? ???? ???”
The defendant-petitioner thereafter in the light of the above filed an application under Section 65 of the Evidence Act for permission to lead secondary evidence under Section 65 of the Evidence Act in the form of the carbon copy of the document Ex.2 dated 2.10.1999. The plaintiff opposed the aforesaid application vide reply Annexure-8 and contended that the document dated 2.10.1999 is not the basis of the suit and that in the absence of any pleadings with regard to the said document or any issue having been framed the defendant can not be permitted to lead secondary evidence and the prayer should be refused.
The learned trial court after considering the entire matter has passed the impugned order Annexure-9 on 12.4.2007. Learned trial court rejected the application filed by the defendant petitioner holding that the permission can not be granted as the present suit is based upon the agreement dated 28.10.1999 and there is no pleading with regard to agreement dated 2.10.1999 and in the absence of any pleadings no evidence can be permitted to be led. The evidence is only required to seen with respect to the pleadings of the parties and the issues framed by the court. The relevant portion of the order passed by the learned trial court dismissing the application under Section 65 of the Evidence Act reads as follows :
”????????? ??.1 ?? ???????? ???????? ?? ?????? ???? ???? ???? ?????? ?? ???? ?????? ??? ?????? ???? ??,???????? ???? ?? ?????? ?? ???? ?????? ?? ???????? ???????? ???? ????????? ???? ??? ??, ?? ??. 28.10.99 ?? ????????? ?????? 15,00,000/- ????? ?? ????? ??? ??? ????????? ??.1 ?? ???? ???? ???? ??? ?? ???? ?? ??????? ?????????? ??. 02.10.99 ?????? 23,51,000/- ????? ?? ????? ???? ???? ??? ????????? ?? ???? ?? ??????? ?????? ???? ??? ????????? ??????????? ?? ???? ??? ???? ???? ?? ???????? ?? ???? ?? ??? ?????? ???? ??? ???????? ?? ????? ??? ?? ????? ???? ?? ?? ??????? ??????????? ???? ???? ?? ???????? ?? ??? ?? ???? ?????? ?? ?? ????????? ??? ?? ????? ??????????? ?? ??? ???? ???????? ?? ???? ?? ?????? ?? ???? ??? ?????? ???? ?????? ??? ??? ????????/????????? ??.1 ?? ???????? ???????? ?? ????? ??? ????? ????????? ???? ????????? ???? 65 ???????? ???. ???????? ?? ???????? ???? ???? ??????? ???? ??? ?? ?????? ????????/????????? ??.1 ?? ????? ?????????-???? ????? ???? ?? ????? ???? ???? ???”
Being aggrieved by the aforesaid order rejecting the prayer for permission to lead secondary evidence the present writ petition has been filed by the defendant-petitioner.
The submission of the learned counsel for the petitioner is that while considering earlier application submitted under Order 11 Rule 14 CPC for production of the document agreement dated 2.10.1999 executed for a consideration of Rs.23,51,000/-, the learned trial court after having considered the objections raised by the plaintiff, which were not in regard to the fact of execution of the agreement dated 02.10.1999 or that the said document had been fabricated, but only with regard to its relevancy and these objections of the plaintiff having been considered by the learned trial court in its order dated 24.8.2004 Annexure-4 the prayer made by the defendant petitioner for production of the concerned document was allowed by the learned trial court with the direction to the plaintiff to produce the same before the court. It is submitted that so far as the relevancy of the document is concerned and the objections of the plaintiff pertaining to the same having been rejected by the learned trial court while allowing the application under Order 11 Rule 14 CPC vide order dated 24.8.2004. The learned trial court could not have rejected the prayer made by the defendant petitioner for leading secondary evidence on the basis that the the document has relevancy to the matter in issue as there is no pleadings in that behalf or that there is no issue pertaining to execution of the agreement dated 2.10.1999. It is submitted that these objections having been rejected by the learned trial court, the learned trial court could not have refused the prayer for leading secondary evidence in the light of its own orders dated 24.8.2004 Annexure-4 and Annexure-6 order dated 07.02.2005.
The learned counsel for the respondent plaintiff supported the impugned order and has raised the same submissions, which was raised before the learned trial court regarding absence of pleadings and that there is no issue framed by the learned trial court in regard to the agreement dated 02.10.1999. He submitted that in the absence of any pleadings no amount of evidence should be allowed to be led.
While there may be no quarall with the submission of the learned counsel for the plaintiff non-petitioner, however, in the facts and circumstances of the present case the learned trial court had an earlier occasion to deal with the objections raised by the defendant while deciding the application filed by the plaintiff under Order 11 Rule 14 CPC for production of the agreement dated 2.10.1999 and these objections had been considered by the learned trial court. The learned trial court directed the plaintiff vide order dated 24.8.2004 Annexure-4 to produce before the court the agreement dated 2.10.1999 entered into for the sale of the property for a consideration of Rs.23,51,000/-. The learned trial court could not have reviewed its own order while rejected the prayer to allow the defendant to lead secondary evidence under Section 65 of the Evidence Act. In the instant case the plaintiff was directed by the learned trial court to produce the document before the court on the application submitted under Order 11 Rule 14 CPC. The plaintiff had not, in his reply Annexure-2 submitted to the application under Order 11 Rule 14 CPC, denied the existence of any such document. On the contrary what was submitted that the document is not relevant for the decision of the present suit. Therefore once the trial court rejected the objection of the plaintiff and directed the plaintiff to produce the said document vide its order dated 24.8.2004 it appears that the plaintiff filed his affidavit in the court (Annexure-5) stating therein that the same is not in his power and possession, it is at this stage that the defendant moved the application under section 65 of the Evidence Act praying that secondary evidence may be permitted to be given of the existence and contents of the document the original of which was shown to not be in possession or the power of the person namely the plaintiff, who was required to produce it and where a notice for the production of the same has been given.
The learned trial court has rejected the prayer of the defendant petitioner by considering the relevancy of the document, which it had occasion to decide while considering the application filed under Order 11 Rule 14 CPC. Having been rejected the objections of the plaintiff in this behalf vide order Annexure-4 dated 24.08.2004 the learned trial court has committed a serious error of jurisdiction in dismissing the prayer of the defendant petitioner in the facts and circumstances of the present case for leading secondary evidence.
In the facts and circumstances of the present case I am inclined to allow this writ petition and set aside the impugned order to be extent by which the learned trial Court has refused the permission to the defendant petitioner to lead secondary evidence with regard to document agreement dated 2.10.1999. However, the plaintiff will be at liberty to challenge the order dated 24.08.2004 allowing the application under Order 11 Rule 14 C.P.C. In any appeal that the plaintiff may be constrained to file, if the suit is dismissed and consequent relief with regard to exclusion of the secondary evidence as this order is based on the order of the learned trial Court dated 24.08.2004 allowing the application under Order 11 Rule 14, C.P.C.
This writ petition is allowed as above.
There shall be no order as to costs.
(DALIP SINGH),J.
Ram Chandr Khatri PS