KUNANA RAM Vs. CIVIL JUDGE SR DIVISION

JUDGEMENT

(1.) HAVING heard learned Counsel for the petitioner and having perused the material placed on record, this Court is unable to find any illegality or error on the part of the learned Trial Court in rejecting the application seeking permission to lead secondary evidence as moved by the plaintiff -petitioner.

(2.) THE plaintiff -petitioner has filed the present suit for specific performance on 28.05.1999. Permission to lead secondary evidence was sought by the petitioner by way of the application dated 09.09.2005 (Annex.6) asserting that original of the agreement in question was snatched away from him by Hanuman Ram, Bodu Ram and other persons and in that relation an FIR bearing No. 63/1999 was lodged with Police Station, Kuchman City whereupon challan has been filed and Case No. 89/2004 is pending. It was submitted that the original document bearing date 15.08.1998 has either been destroyed or might be in possession of defendants Nos. 1 to 3 but, for the plaintiff being not in possession of its original, he may be permitted to lead secondary evidence. The learned Trial Court by its impugned order dated 22.02.2006 (Annex.8) has proceeded to reject the prayer so made by the petitioner to lead secondary evidence, inter alia, on the following considerations:

(3.) SEEKING to assail the order aforesaid refusing the permission to lead secondary evidence, the plaintiff has preferred this writ petition and it has strenuously been argued by the learned Counsel Mr.G.R.Punia appearing for the plaintiff -petitioner that genuineness of the document could not have been questioned by the learned Trial Court at the time of considering the prayer for permission to lead secondary evidence; that the petitioner, only after producing the document in evidence, would be in a position to prove the signatures/thumb impressions of the executants and ultimate appreciation of the document has to be made at the time of final hearing but permission to lead secondary evidence could not have been refused particularly when the petitioner pointed out that the document had been snatched away and an FIR was also lodged in that relation. According to the learned Counsel, merely because the challan filed by the investigating agency does not state about any offence relating to snatching or stealing of the document, happening of the incident is not ruled out. Learned Counsel further submitted that the suit is based on the said document and the petitioner would suffer serious and irreparable injury if the document were not permitted to be proved by way of secondary evidence. Learned Counsel has referred to and relied upon the decision of the Hon'ble Supreme Court in the case of State v. Navjot Sandhu @ Afsan Guru, 2005 WLC (SC) Criminal 314 and the decisions of this Court in the cases of Dhan Raj v. Jawant Raj and Anr., 2003 WLN (UC) 47 and Dhanraj Pawan Kumar v. Ramrakh Ghanshyamji, 1990 RLW 113.