Dinesh Maheshwari, J. - (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: (i) that the suit was filed on 28.05.1999 whereas the said FIR was lodged on 31.05.1999; and there was no reason as to why original of the document was not filed with the plaint and as to why the photostat produced before the Court was not compared with the original; (ii) that on 11.09.2001, the defendants moved an application under Order XI Rule 14 CPC seeking directions against the plaintiff for production of the said document for the purpose of their filing of written statement but the said application was not pressed because, according to the ordersheet dated 15.04.2002, a copy of the agreement was supplied by counsel for the plaintiff to the counsel for the defendants; however, the original was not filed at that stage nor was it stated that original was not in power and possession of the plaintiff and had rather been snatched away by the defendants or their allies; (iii) that the plaintiff seeks permission to lead secondary evidence in relation to an unregistered and unstamped document relating to an agreement to sell Immovable property that carries a serious question on its admissibility in evidence; (iv) that photostat of the document in question states about two attesting witnesses, Ratna Ram and Dhanna Ram, who have been examined in this suit as PW -1 and PW -2 respectively and both of them stated in cross -examination that they were not aware if it were a forged document; (v) that the challan filed on the aforesaid FIR shows that no offence has been stated in relation to stealing of, or snatching away, a document.
(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.;