Hari Ram vs Vimla and Others

V.K. Mathur, J.—The present petition has been filed by the petitioner-plaintiff challenging the order dated 06th November 2012 passed by the learned Civil Judge (JD), Tibbi, District-Hanumangarh in Civil Case No. 04/2012 whereby an application filed by the petitioner-plaintiff under sec. 65 of the Evidence Act has been rejected.

As per relevant facts of the case, the petitioner filed a suit for specific performance with regard to the agreement for sale dated 12th May 1993. As per petitioner-plaintiff, the defendants executed agreement for sale of 1 bigha 11 biswas for consideration of Rs. 20150/-, obtained the consideration and handed over possession of the land. In pursuance of the agreement for sale, the Sale Deed was also executed on 07th October 1993 for 1 bigha 10 biswas and mutation of 1 bigha 10 biswas was recorded in favour of petitioner-plaintiff. The petitioner-plaintiff filed plaint seeking specific performance of unperformed part of agreement for sale dated 12th May 1993 by the defendants, by execution of sale deed for remaining 1 biswa land. In their written statement, the defendants denied execution of said agreement for sale.

The petitioner-plaintiff filed an application under sec. 65 of the Evidence Act seeking to exhibit photocopy of agreement for sale dated 12th May 1993 in secondary evidence. The respondent-defendants opposed the application for taking photocopy of said agreement on record as secondary evidence. The learned trial court vide impugned order dated 06th November 2012 rejected the application of the petitioner-plaintiff.

The counsel for the petitioner-plaintiff contended that the said agreement for sale dated 12th May 1993 is the basis of his suit for specific performance and learned court below erred in not allowing the agreement for sale to be admitted in evidence.

I have heard learned counsel for the petitioner-plaintiff and perused the material on record.

It is settled position of law that though agreement to sell is compulsorily registrable yet unregistered agreement to sale can be admitted in evidence in a suit for specific performance of contract. The petitioner-plaintiff can be allowed to lead secondary evidence in respect of such document under sec. 65 of the Evidence Act, since in the present case factual foundation has been laid by the plaintiff in the plaint, in which the details of the agreement for sale have been stated and which is the basis of the suit for specific performance. Hence, the learned trial court has erred in disallowing application of the petitioner-plaintiff for admitting the agreement for sale in evidence.

In this view of the matter, the impugned order dated 06th November 2012 passed by the learned Civil Judge (JD), Tibbi, District - Hanumangarh in Civil Case No. 04/2012 is set aside and the application of the petitioner-plaintiff moved under sec. 65 of the Evidence Act is allowed.

The writ petition stands allowed accordingly.