Case Note & Summary
The petitioners, original defendants in Regular Civil Suit No.36/2007, filed a writ petition challenging the order dated 13/12/2010 passed by the learned Civil Judge, Senior Division, Achalpur, rejecting their application (Exh. 103) for permission to lead secondary evidence in respect of two documents: a Gift Deed dated 27/12/2006 and a Relinquishment Deed dated 24/11/2006. The suit was filed by the respondent-plaintiff for a declaration that the petitioners have no concern with the suit property and that the alleged partition effected by the petitioners was illegal. The petitioners filed a written statement and a counter claim, claiming title to the property based on the Relinquishment Deed. The trial court rejected the application on the ground that the petitioners had not produced the original documents or proved their loss. The High Court observed that the trial court had not considered the pleadings and the counter claim where the documents were relied upon. The court held that the application ought to have been allowed to enable the petitioners to prove the loss of originals and then lead secondary evidence. The impugned order was set aside and the application was allowed. The court directed the trial court to permit the petitioners to lead secondary evidence in accordance with law.
Headnote
A) Civil Procedure - Secondary Evidence - Section 65 of Indian Evidence Act, 1872 - The petitioners-defendants sought to lead secondary evidence of a Gift Deed and a Relinquishment Deed, claiming the originals were lost. The trial court rejected the application on the ground that the petitioners had not produced the originals or proved loss. The High Court held that the trial court had not considered the pleadings and the counter claim where the documents were relied upon, and that the application ought to have been allowed to enable the petitioners to prove the loss of originals and then lead secondary evidence. The impugned order was set aside and the application was allowed. (Paras 2-5)
Issue of Consideration
Whether the trial court was justified in rejecting the application for leading secondary evidence in respect of the Gift Deed dated 27/12/2006 and Relinquishment Deed dated 24/11/2006.
Final Decision
The impugned order dated 13/12/2010 is set aside. The application (Exh. 103) is allowed. The trial court is directed to permit the petitioners to lead secondary evidence in accordance with law. Rule made absolute accordingly.
Law Points
- Secondary evidence
- admissibility of secondary evidence
- conditions for leading secondary evidence
- Section 65 of Indian Evidence Act
- 1872
