Case Note & Summary
The petitioners, original plaintiffs in Regular Civil Suit No. 120/2006, filed a suit for specific performance of an agreement to sell dated 21.12.1976 concerning land S.No.70/D (G.No.129) at village Mankeshwar. They claimed that the defendants' predecessors, Dajiaba and Bajiaba, had agreed to sell 57 ares for Rs.2500 and received Rs.1500 as part consideration. The plaintiffs alleged that the original agreement was lost and sought to lead secondary evidence. The trial court rejected their application (Exhibit 86) on 03.12.2009. The High Court dismissed the writ petition, holding that the plaintiffs failed to prove the loss of the original document and did not issue a notice to produce to the defendants, as required under Section 65 and 66 of the Indian Evidence Act, 1872. The court emphasized that secondary evidence is admissible only after a proper foundation is laid, including proof of execution and loss, and notice to the opponent. The petition was dismissed with no order as to costs.
Headnote
A) Evidence Act - Secondary Evidence - Section 65 Indian Evidence Act, 1872 - Conditions for Leading Secondary Evidence - The court held that before leading secondary evidence, the party must lay a foundation by proving the existence, execution, and loss of the original document. Mere assertion of loss is insufficient; the party must also give notice to the opponent to produce the document if it is in their possession. In this case, the plaintiffs failed to prove loss of the original agreement and did not issue a notice to produce, hence the application was rightly rejected. (Paras 5-8) B) Civil Procedure - Specific Performance - Agreement to Sell - Suit for Specific Performance - The plaintiffs sought specific performance of an alleged agreement to sell dated 21.12.1976. The trial court rejected their application to produce secondary evidence of the agreement. The High Court upheld the rejection, noting that the plaintiffs had not taken steps to prove the loss of the original document and had not issued a notice to produce under Order XII Rule 8 CPC. (Paras 3-8) C) Evidence Act - Notice to Produce - Section 66 Indian Evidence Act, 1872 - Requirement of Notice - The court observed that secondary evidence of a document in the possession of the opponent cannot be given without a notice to produce. Since the plaintiffs did not issue such notice, the application was premature. (Para 7)
Issue of Consideration
Whether the trial court erred in rejecting the plaintiffs' application to lead secondary evidence of an agreement to sell dated 21.12.1976, when the original was allegedly lost and no notice to produce was given to the defendants.
Final Decision
The High Court dismissed the writ petition, upholding the trial court's order rejecting the application to lead secondary evidence. No order as to costs.
Law Points
- Secondary evidence
- Section 65 Indian Evidence Act
- 1872
- Notice to produce
- Loss of original document
- Specific performance
