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Judgment
The petitioner, judgment-debtor in Title Suit No.4 of 1975, is aggrieved of order dated 19.12.2003, by which his application for calling for record of
T.K.M Case No.17(G) of 1987-88 was rejected and he was declined permission to lead evidence in Misc. Case No.2 of 1992 and order dated
05.02.2004 by which the trial court has declined to review order dated 19.12.2003.Â
Title Suit No.4 of 1975 was decreed vide judgment dated 02.02.1976 against which First Appeal No.179 of 1976 was filed, which was dismissed by
the High Court and the Special Leave Petition preferred against the order passed in First Appeal No.179 of 1976 also stood dismissed. In the
execution case levied for executing judgment and decree passed in Title Suit No.4 of 1975, the judgment-debtor filed an application under section 47
CPC, primarily raising a plea of executability of the decree passed in the suit. To fortify his stand the judgment-debtor filed an application calling for
the record of T.K.M Case No.17(G) of 1987-88 which contains the proceeding for grant of lease under the Khas Mahal. Responding to this
application, a reply was filed on behalf of the Deputy-Commissioner stating that the record of said proceeding is not available. Finding that the certified
copy of the order-sheet and notice in T.K.M Case No.17(G) of 1987-88 are on record, the application filed by the petitioner was dismissed. By the
said order the executing court has also closed evidence of the applicant.     Â
Contending that the delay in disposal of Misc. Case No.2 of 1992 cannot be attributed to the applicant/petitioner, Mr. Indrajit Sinha, the learned
counsel submits that the delay has occurred awaiting the record of T.K.M Case No.17(G) of 1987-88 and while so, the impugned order dated
19.12.2003 warrants interference.
Mr. Shafique Rahman, the learned counsel for the respondents, however, submits that fruit of decree in Title Suit No.4 of 1975 has been denied to
the decree-holder by the petitioner by delaying disposal of the miscellaneous case by filing frivolous application.
A perusal of the impugned order dated 19.12.2003 reflects that certified copy of the order-sheet and the notice issued in T.K.M
Case No.17(G) of 1987-88 are on record of Misc. Case No.2 of 1992. Section 62 of the Indian Evidence Act, 1987 defines primary evidence to mean
the document produced for inspection of the Court and section 63 defines secondary evidence; it means and includes certified copies given under the
provisions contained in the Evidence Act, copies made from the original by mechanical processes, copies made from or compared from the original
etc. Now, in view of the affidavit of the Deputy-Commissioner that the original records pertaining to T.K.M Case No.17(G) of 1987-88 are not
available, whether the certified copies produced by the applicant shall fall under the definition of secondary evidence under section 63 and whether
those documents can be admitted in evidence under section 65, are the issues on which a decision can be rendered by the executing court while finally
deciding Misc. Case No.2 of 1992. In the aforesaid view of the matter, no exception can be taken to the dismissal of the application calling for original
records of T.K.M Case No.17(G) of 1987-88.
Insofar as, denial of permission to lead oral evidence is concerned, I find that on application dated 07.01.1993 filed by the petitioner in Misc. Case
No.2 of 1992 he was permitted to lead oral evidence and therefore I am of the opinion that one opportunity may be granted to the petitioner to
examine himself as a witness in Misc.Case No.2 of 1992.
Accordingly, the impugned orders dated 19.12.2003 and 05.02.2004 are set-aside to the above extent. The petitioner shall be granted an
opportunity to examine himself as a witness in the miscellaneous case.Â
The writ petition stands partly allowed.
Interim order dated 13.09.2004 stands vacated.Â
The trial Judge shall proceed to dispose of Misc. Case No.2 of 1992 within a period of three months, without granting adjournment to any of the
parties, but for just excuse. Â