HIRA AND ANOTHER Vs. SMT. GURBACHAN KAUR

JUDGEMENT

(1.) THIS revision petition has been filed on behalf of the plaintiffs against the order dated October 24, 1986 passed by Sub Judge IInd Class, Jagadhri whereby application filed by the plaintiffs for leading secondary evidence to prove agreement to sell was declined.

(2.) HIRA and another filed a suit for specific performance of agreement to sell dated July 9, (sic) on payment of the balance of sale consideration. This suit was contested on behalf of Gurbachan Kaur, the defendant, inter -alia alleging that the said agreement photo -copy of which was filed with the plaint, was false and fabricated one. After the necessary issues were framed, the case proceeded for recording evidence on behalf of the plaintiffs. After some evidence was led and the case was adjourned for remaining evidence of the plaintiffs being last opportunity allowed to them, an application was filed for leading secondary evidence of agreement to sell alleging therein that the agreement had been lost. This application was contested which resulted in passing of the impugned order. Shri M.S. Sullar, Advocate, for the petitioners, has argued that the trial Court ought to have afforded an opportunity of leading evidence that the agreement to sell had been lost before deciding the application for leading secondary evidence. However, I find no force in this contention. Certified copy of the reply filed to the said application on behalf of Gurbachan Kaur has been produced in this revision petition which has, been perused. It was alleged on behalf of the defendant that the application was not maintainable being vague and was not verified. It was not supported by any affidavit. The case was fixed for the evidence of the plaintiffs and last opportunity was allowed by the Court when the application was filed. Section 65(c) of the Evidence Act reads as under: -

(3.) REFERENCE has been made to a decision of R.N. Mittal J. in Balbir Singh and another v. Smt. Darshan Kaur : (1976) 78 P.L.R. 239, wherein while accepting the revision petition, the case was remanded to the trial Court with the direction to decide the matter afresh in accordance with the observations made therein. In para 5 of the judgment it was observed as under: -