GURDITTA Vs. BALKAR SINGH AND ANOTHER

JUDGEMENT

(1.) THIS petition is directed against the order of the trial court dated 17th August, 1987, whereby the application for leading secondary evidence filed by the Defendant -Respondent Balkar Singh was allowed.

(2.) ACCORDING to the Defendant, the Plaintiff had entered into an agreement of sale dated 18th August, 1984; that the said agreement was in his possession but had been lost while he was going from his village to New Courts, Jalandhar on 14.11.1985 on cycle; that the bag containing the said agreement along with certain other documents fell on the way near Bhagat Singh Chowk, Jalandhar, and could not be traced out despite the best efforts; that an F. I. R. in this connection was lodged at Police Station on 14th November, 1985, and that photostat copy of the agreement was on the file. It was, therefore, prayed that since he could not produce the original agreement on record, he may be permitted to lead secondary evidence with respect thereto. The application was resisted on the ground that there was never any agreement dated 18th August, 1984, as alleged that the Defendant could not be allowed to produce on record any agreement which was never mentioned in the written statement; that the question of its loss never arose, as it never existed and was never executed between the parties. According to the Plaintiff, the Defendant had forged some agreement in order to avoid prosecution. The learned trial court allowed the said application without giving any reasons. It was simply stated that "Without commenting on the merits of the documents in question in the instant case I allow the Defendant/applicant, permission to lead secondary evidence regarding the alleged agreement dated 18th August, 1984, subject, however, to his proving the due execution of the same and loss thereof."

(3.) THE learned Counsel for the Plaintiff/Petitioner submitted that this agreement never existed; the suit was filed on 9th May, 1985 whereas the written statement was filed by Balkar Singh, Defendant, on 25th July, 1985; that no such plea was taken in the written statement though the alleged FIR was lodged on 14th November, 1985; that if any such agreement was in existence at the time of filing of the written statement, a plea to that effect must have been taken by the Defendant; moreover, it was wrongly stated by the Defendant that the photo state copy of the said agreement was already on the record. According to the learned Counsel further, the same was filed along with application dated 16th July, 1987, seeking permission to lead secondary evidence.