Table of Content
1. background of the suit for specific performance and the procedural history of summoning a document holder. (Para 1 , 2)
2. arguments regarding the distinction between a person summoned to produce a document and a cited witness. (Para 3 , 4)
3. legal distinction under section 139 of the evidence act between a document producer and a witness. (Para 5 , 6)
4. setting aside the trial court's order and allowing the revision petition. (Para 7 , 8 , 9)

ALKA SARIN, J. (Oral)

1. The present revision petition has been filed under Article 227 of the Constitution of India impugning the order dated 07.01.2020 (Annexure P-1) whereby the application filed by the plaintiff-petitioner to de-exhibit the affidavit of Charanjit Singh and not to read the same in evidence, has been declined.

2. Brief facts relevant to the present lis are that the plaintiff-petitioner herein filed a suit for specific performance of agreement to sell dated 03.05.2011. The case set up by the plaintiff-petitioner was that the original agreement to sell was handed over to the counsel - Mr. Hardeep Singh, Advocate - who did not return the same back to the plaintiff-petitioner and only handed over a notarized copy, therefore, the suit was filed on the basis of the notarized copy. During the course of the evidence of the plaintiff-petitioner, the plaintiff-petitioner moved an application for secondary evidence (Annexure P-6) for proving on record the agreement to sell dated 03.05.2011. The said application was dismissed vide order dated 11.08.2016 (Annexure P-7) holding as under :

“As per the requisites of Section 65 of the Indian Evidence Act, permission to lead secondary evidence of document can be granted in case the original is shown to be in possession or power of any person and after notice under Section 66, the said person does not produce it. In the case in hand, on appearance of the respondents/defendants before the court, in his written statement filed by respondent no.1, he has specifically mentioned about the fact that original agreement to sell is in possession of Charanjit Singh. Before institution of the application in hand, applicant has not opted to serve notice upon Charanjit Singh in accordance with the rules to produce the said agreement. Hence, keeping in view the fact that original agreement is in existence and is in possession of Charanjit Singh, it can not be termed to have been lost. Accordingly, no permission to lead secondary evidence can be granted and the present application stands dismissed.

To come up on 26.10.2016, for entire evidence of the plaintiff at his own responsibility”

Thereafter, an application (Annexure P-8) was filed under Section 66 of the Indian Evidence Act, 1872 by the plaintiff-petitioner for issuance of notice to Mr. Hardeep Singh, Advocate to produce the original agreement to sell dated 03.05.2011. The said counsel appeared and stated that the original agreement to sell had been handed over to Charanjit Singh, which was also the stand taken by the defendant-respondents in their written statement. Thereafter, an application (Annexure P-9) was filed for issuance of notice to Charanjit Singh son of Rajinder Singh to produce the original agreement to sell dated 03.05.2011. The said Charanjit Singh initially appeared without any record on 15.11.2018. Thereafter, he appeared and on 01.12.2018 instead of producing the document i.e. original agreement to sell dated 03.05.2011 filed his affidavit in examination-in-chief as PW1 and admitted the entire case of the defendant-respondents. It is to be noticed that Charanjit Singh is the son of the defendant-respondent No.2 - Balvir Kaur. Subsequently, an application (Annexure P-12) was filed by the plaintiff-petitioner for de-exhibiting the affidavit. Reply was filed to the application and vide the impugned order dated 07.01.2020 the said application was dismissed holding that on the day the affidavit was tendered, the presence of the counsel of the plaintiff-pet

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