The existence of a document can be prima facie proved based on the pleadings in the plaint and the defendant's reply, and the loss of a document is not required to be proved in absolute terms at the application stage.

1. This petition has been directed against the order dated 11-12-1996 passed by the learned trial Court by which the application dated 29-10-1996 filed by the plaintiff for leading secondary evidence has been allowed. Notice of this petition was issued to the respondents.

2. Mr. Arun Chandra, the learned counsel appearing on behalf of the petitioners-defendants submits that by the impugned order, the plaintiffs have been allowed to lead secondary evidence with regard to an agreement dated 13-2-1984. He, however, submits that in the plaint, date, month and year of the agreement were not mentioned and even in the statement of the plaintiff, the alleged agreement has been referred as of the year 1985. He further submits that there is no mention in the application to the effect that any FIR was lodged for the loss of the alleged agreement. He also submits that application has been filed on 29-10-1996 and is a belated one. The learned counsel contends that since the existence and loss of the agreement has not been proved, the permission to lead evidence could not be granted. In support of his submission, the learned counsel has placed reliance on two judgments of this Court in Gurditta V/s. Balkar Singh, 1989 (1) PLR 418 and Hira V/s. Smt. Gurbachan Kaur, 1988 (2) PLR 173.

3. Mr. Nagpal, the learned counsel appearing on behalf of the respondents-plaintiffs, however, submits that the agreement has been specifically pleaded in para 8 of the plaint and in reply to para 8 of the plaint, the defendant had denied this para for want of knowledge. He submits that since the existence of the agreement has not been specifically denied, it amounts to the admission that the agreement did exist. In support of this submission, he had placed reliance on a Division Bench judgment of this Court in Surinder Singh V/s. Dr. Satwant Kaur, 1984 Shimla Law Journal P&H 405. The learned counsel further submits that the loss of the document has been pleaded in the application and the loss of the document was not required to be proved at the time of filing the application under Sec. 65 Evidence Act. In support of this submission, the learned counsel has placed reliance on a judgment of this Court in Raj Kumari V/s. Lal Chand, 1994 (1) Civil Court Cases 477.

4. After hearing the learned counsel of the parties and having perused the impugned order, I do not find any infirmity or illegality in the order passed by the learned trial Court. Prima facie P-3 the existence of the document has been proved in view of the facts mentioned in para 8 of the plaint and reply of the defendants to the said paragraph. As regards the loss of the document, in the application itself, the loss has been pleaded and the loss is not required to be proved in absolute terms at this stage. The learned counsel for the respondent has submitted that the other brother of the plaintiff who is also signatory to the alleged agreement is yet to be examined.

5. In view of the above discussion, the petition is dismissed with no orders as to costs.Petition dismissed.