SURAJ MANI GUPTA Vs. SUNITA & OTHERS

JUDGEMENT

(1.) At this stage, the learned Senior Counsel for the petitioner has fairly submited before this Court, that he would not at this stage contest the validity of the order pronounced upon an application cast under the provisions of Section 65 of the Indian Evidence Act. DW-1 Upender Sharma (Purohit) of Haridwar, was served through dasti mode, for his proving photocopies of Kursi Deed of 28.11.2001 and of 13.11.2008, from original(s) thereof as held in his custody. However, despite the aforesaid being served through dasti mode, he refused to produce the documents concerned, before the learned trial Court, on the ground of theirs being part of a voluminous record besides theirs' being required for making daily entries, of pilgrims visiting Haridwar. Consequently, defendant No.1 moved an application cast under the Provisions of Order 26 Rule 1 read with Section 151 CPC, claiming therein a relief that the deposition(s) of the aforesaid be recorded by a Local Commissioner.

(2.) The learned trial Court in dismissing the aforesaid application, hinged its apposite order of dismissal, upon its holding jurisdiction(s) to through coercive processes ensure his presence therebefore, for facilitating the counsel for defendant No.1, to from apposite original(s) thereof, hence exhibit the aforesaid Kursi Deed(s). Since apparently the aforesaid reason prevailed upon the learned trial Court, in its proceeding to dismiss an application constituted before it under the provisions of Order 26 Rule 1 CPC, thereupon the aforesaid order is not wanting in any propriety nor it suffers from any illegality. Consequently, it is affirmed. However, before parting, the learned trial Court is directed to bear in mind the observation(s) recorded by it in the impugned order, whereby it has reserved liberty vis-à-vis it, to order for issuance of coercive process(s) for ensuring for the relevant purpose, the presence before it, of, one Upender Sharma (Purohit) of Haridwar, DW-1. It hence be forthwith implemented. Also, the learned trial Court may permit defendant No.1, to, in case the aforesaid DW-1, unveils before it, of, his, not, holding possession of original(s) of the relevant documents, to thereupon institute an application cast under the provisions of Section 65 of the Indian Evidence Act, for proving by way of secondary evidence, photocopies of Kursi Deed(s). If the application is instituted, the learned trial Court shall decide the same within four weeks.

(3.) In view of the above, the instant petition is disposed of. Pending application(s), if any, also stand disposed of. Record of the learned trial Court be sent back forthwith. Any observations made hereinabove shall not be taken as an expression of opinion, on the merits of the application, if filed, by defendant No.1 under the provisions of Section 65 of the Indian Evidence Act and the learned trial Court shall decide the same uninfluenced by any observations made herein above.