Secondary evidence is admissible when original documents are destroyed, especially when relevant to the case at hand.

Satyen Vaidya, Judge (oral)

Heard.

2. By way of instant petition, the petitioner has assailed the order dated 11.05.2022, passed by learned Senior Civil Judge, Court No.1, Mandi, in Civil Suit No.234/18/11, whereby the application of the petitioner for leave to lead secondary evidence has been dismissed.

3. The petitioner and respondents herein are plaintiff and defendant, respectively before learned trial Court in Civil Suit No.234/18/11. The parties hereafter shall be referred to by the same status as they hold before learned trial Court.

4. The plaintiff has filed a suit for permanent prohibitory injunction against the defendant and another in respect of the land comprised in Khewat No.401, Khatauni No.476, Khasra No. 701, 703 and 705 along with Khewat Khatuni No.400/475, Khasra No.700 and 702, situated in Mauja Pandoh, Tehsil Sadar, District Mandi, H.P. on the premise that the plaintiff along with his two brothers jointly owned the entire suit land.f One of the brothers Bhupinder Singh (defendant No.2 before learned trial Court) had sold his share to the defendant and the said defendant being out of possession was trying to interfere in the peaceful possession of the plaintiff over the suit land. The specific case of the plaintiff is that on the suit land a joint house of the parties existed which is enclosed by a common boundary and has only one passage.

5. While leading the evidence, the plaintiff had sought to prove the document evidencing filing of complaint by him in Police Post, Pandoh, District Mandi against the defendant. In order to prove the filing of the complaint, the original record was summoned from Police Post, Pandoh, but it was revealed that the record was not available as the same stood destroyed. In such circumstances, the plaintiff was deprived from production of original record from where the fact could be proved.

6. The plaintiff claimed to be in receipt of a copy of the complaint with original signatures of MHC Om Parkash as acknowledgement of receipt. However, he pleaded that the document with original signatures of MHC Om Parkash has been lost somewhere and he was left only with photo copy of such document.

7. In above background, the plaintiff in the first instance filed an application under Section 151 of the CPC with a prayer to summon MHC Om Parkash for proving hisf signatures on photo copy, but his prayer was declined on the ground that even if the witness was summoned no fruitful purpose would be served as the plaintiff did not have the original signatures of MHC Om Parkash. It is thereafter that the plaintiff moved an application under Section 65 of the Evidence Act seeking permission to lead secondary evidence.

8. The prayer of the plaintiff has been rejected on the ground that the document sought to be proved by the plaintiff by examining MHC Om Parkash was not relevant to the controversy

9. Having perused the record of the case, I am of considered view that the impugned order needs interference for the reason that the finding regarding the document not being relevant, prima facie appears to be incorrect.

10. The suit has been filed by the plaintiff against the defendant for permanent prohibitory injunction on the premise that he along with his two brother were co-owners of the suit land. One of the brothers had sold his share to defendant. The defendant was out of possession as even the brother of plaintiff, from whom the defendant has purchased the share, was not residing in the property and was residing at Manali since long.

11. The defendant, though, has pleaded that he was put in possession of the hous