The court upheld the trial court's discretion to allow additional evidence, emphasizing that the absence of notice under Section 66 of the Evidence Act does not invalidate the introduction of secondary evidence when the original document's existence is disputed.

JUDGMENT

Mr. Harkesh Manuja, J. (Oral)

By way of present revision petition filed under Article 227 of Constitution of India, challenge has been laid to an order dated 09.05.2024 passed by the learned Addl. Civil Judge, (Senior Division), Barnala, whereby, an application filed on behalf of respondents-plaintiffs seeking permission to lead additional evidence so as to prove the partition deed dated 17.03.2021 stands allowed.

2. Briefly stating, the respondent-plaintiff filed a suit for declaration qua the ownership and possession over half share of property measuring 30 kanals 12 marlas situated within the revenue estate of Village Tapa-A, District Barnala based on family settlement dated 17.03.2021. The plaintiff-respondent No.1 also challenged the transfer deed dated 25.08.2021 executed by defendant No.1 in favour of defendant No.2 besides putting up challenge to the sale deed dated 25.08.2021 executed by defendant No.1 in favour of defendant Nos. 3 and 4 and also pray for grant of permanent injunction for restraining defendants from alienating the suit property or changing its nature as well as restraining them from interfering in his possession thereof.

3. During pendency of the suit, while the evidence of respondent No.1-plaintiff was in progress, an application was filed on his behalf for permission to lead additional evidence qua partition deed dated 17.03.2021. Upon notice to the defendants, the same was opposed, however, the trial Court vide its order dated 09.05.2024 allowed the same.

4. Impugning the aforesaid order, learned counsel for the petitioner submits that the application filed at the instance of plaintiff-respondent No.1 was liable to be declined as the document sought to be proved by way of additional evidence was merely a photostate copy. He further points out that no notice under Section 66 of Indian Evidence Act, 1872 was ever served upon petitioner-defendant No.1 calling upon him to produce the said partition deed dated 17.03.2021 and thus, the discretion exercised by the trial Court in favour of respondent No.1-plaintiff was illegal.

5. I have heard learned counsel for the petitioner and gone through the paper-book. I am unable to find substance in the submissions made by learned counsel for the petitioner.

6. In the present case, the claim for declaration and permanent injunction as set up by respondent No.1-plaintiff in his suit is based upon the family partition deed/yadasatnama dated 17.03.2021 and a photocopy thereof has been produced on record along with an application for seeking permission to prove the same by way of secondary evidence. A perusal of the yadasatnama dated 17.03.2021 shows that the same contains signatures of the petitioner-defendant No.1, however, the plea set up in the application as regards the original deed been handed over to him has been disputed in the reply to the application filed on behalf of petitioner-defendant No.1, thus, in such circumstances, it becomes essential to afford an opportunity to respondent No.1-plaintiff to prove the said yadasatnama dated 17.03.2021, enabling him to prove his case.

7. Furthermore, in the humble opinion of this Court no merits can be found with the submission made on behalf of the petitioner-defendant No.1 that no notice under Section 66 of the Indian Evidence Act, 1872 was ever served upon him to produce the original document especially, when the stand taken by him in his reply to the application filed on behalf of respondent No.-1plaintiff was about denial of original for yadasatnama been handed over to him for the purposes of getting the entries corrected in the revenue record. Besides it, there is no strength in the submission made on behalf of the petitioner that the application filed on behalf of respondent No.1-plaintiff being without affidavit was not to be entertained by the trial Court. In this regard, it may be pointed out here that the contents made in the application filed on behalf of respondent No.1-plaintiff were duly veri