Secondary Evidence - Before secondary evidence of a document can be led and proved, the original document and its loss is liable to be proved

S.S.Saron, J.

1. Learned Counsel for the petitioner has produced the dasti notices regarding effecting of service on respondent No. 1. According to the same, respondent No. 1 has been served. However, despite service, no one has put in appearance on his behalf. He is, therefore, proceeded against ex parte.

2. This revision petition has been filed against the order dated 9.12.2004 passed by the learned Additional Civil Judge (Sr. Division) Sangrur, whereby defendants-respondents No. 2 to 4 have been granted permission to lead secondary evidence of an agreement to sell dated 13.6.1995.

3. The plaintiff-petitioner filed a suit for specific performance of the agreements to sell dated 20.6.1996, 15.11.1996 and 31.12.1996 executed by Inderjit Singh (defendant No. 1) in favour of the plaintiff with regard to land measuring 12 Bighas 13 Biswas, as detailed in the head note of the plaint, after setting aside the sale deeds dated 18.12.1996 executed by Inderjit Singh (defendant No. 1) in favour of Amarjit Singh (defendant No. 4) and Kulwinder Kaur (defendant No. 2) as also the sale deed dated 20.5.1997 executed by Inderjit Singh (defendant No. 1) in favour of Kulwinder Kaur and Tejinder Kaur (defendants No. 2 and 3) and in the alternative, suit for recovery of Rs. 3,80,000/- on account of refund of earnest money was prayed along with interest etc. In the written statement filed by Kulwinder Kaur and Tejinder Kaur (defendants No. 2 and 3), a stand was taken that there was an agreement of sale dated 13.6.1995 between them and Inderjit Singh (defendant No. 1) which had been misplaced from their house, The plaintiff-petitioner submitted an application dated 5.9.2000 for production of the said agreement of sale dated 13.6.1995. In response to that, the defendants stated that the said agreement of sale had been misplaced and therefore, it could not be produced in the Court. Accordingly, a prayer was made by the defendants for production of secondary evidence of the aforesaid agreement in terms of Section 65 of the Evidence Act, which has been allowed by the learned trial Court. The said order allowing the production of the said agreement of sale by way of secondary evidence is assailed by the plaintiff-petitioner.

4. Learned Counsel for the petitioner contends that the impugned order is absolutely erroneous inasmuch as the agreement dated 13.6.1995 on which defendants No. 2 and 3 have based their claim, has in all probability been prepared after the case had been filed. In fact, there is no mention of the agreement dated 13.6.1995 in the sale deeds dated 18.12.1996 and 20.5.1997 executed by Inderjit Singh (defendant No. 1) in favour of defendants No. 2 and 4 and defendants No. 2 and 3 respectively. Therefore, it is contended that when the original of the agreement to sell is not shown to exist, the question of its being misplaced or lost does not arise. The defendants-respondents in fact were liable to show as to how they procured the photocopy of the said agreement in the absence of the original being shown to have been lost or misplaced. The defendants-respondents, therefore, it is contended cannot be allowed to lead secondary evidence in respect of an agreement of which there is no original.

5. In response, learned Counsel for the respondents states that the agreement to sell dated 13.6.1995 had been misplaced by defendants No. 2 and 3 and they have undertaken to produce the same as and when the same is traced out. Besides, it is submitted that the question of admissibility is not to be decided in the application seeking permission to lead secondary evidence. As such, it is open to the plaintiff to argue on the admissibility of the document aforesaid at the appropriate stage, as has been observed by the trial Court in its impugned order dated 9.12.2004. Therefore, it is contended that the petition merits dismissal.

6. I have given my thoughtful consideration to the contentions raised by learned Counsel for the respective parties. I