UMAJI RAO Vs. DINESHCHANDRA

JUDGEMENT

(1.) THIS revision petition is directed against the order dated 24.10.97 passed by viii Addl. District Judge, Gwalior.

(2.) BRIEFLY narrated facts are that, the respondent No.1 filed a suit for specific performance of contract against the petitioner and respondent Nos. 2 to 4 on the basis of an agreement which did not Bear signature of respondent No.4. The suit was contested and the defendant No. 1 i.e. the present petitioner claimed that there was mutual partition in between family members on 16.7.74 which was acknowledged by a writing on 26.9.74. The disputed property fell in the share of respondent No.4. He had filed the acknowledgement of partition dated 26.9.74 before the Court below and had given copy to the plaintiff/respondent No. 1. The learned trial Court thereafter returned the original document to defendant No.1 i.e. the present petitioner. The acknowledgment/ memorandum of partition was prepared in four typed copies over which defendant No. 1 i.e. the present petitioner and his family members had signed. Every copy had the signatures of the notary and seal. During the pendency, the memorandum which was on stamp paper could not be made available inspite of best efforts, hence an application purporting to be under section 62 of Indian Evidence Act for accepting the copy which bear signatures of all the persons was moved before the learned Court below and the learned Court below has rejected the application by the impugned order. Feeling aggrieved, this petition has been preferred.

(3.) LEARNED counsel for the respondents on the other hand contended that several opportunities were given and directions were also given by the learned Court below for producing the original document, but it was never produced. Learned counsel took me through the order sheet of the Court below and pointed out that inspite of the directions of the Court, the original document was not produced. He urged that in reality there has never been any such document and hence the original document is being suppressed inspite of the fact that the Court made specific directions. The documents sought to be filed cannot be said to be primary evidence within the meaning of section 62 of the Indian Evidence Act. The application was rightly rejected by the Learned Court below.