Joginder Pal and Others vs Parduman Singh and Others

Sat Pal, J.—This petition has been directed against the order dated 2nd April, 1996 passed by Additional Civil Judge, Senior Division, Balachaur. By this order, the learned trial Court has dismissed the application filed by the petitioner-plaintiffs u/s 65 of the Evidence Act for producing secondary evidence with regard to Chakota receipts and one agreement dated 14.11.1995. In the impugned order inter alia, it has been stated that the said documents were not pleaded in the plaint nor any list of documents showing the particulars of these documents was annexed with the plaint as required by Order 7 Rule 14, CPC. It has further been stated that according to the case of the plaintiffs, these documents were in their possession, but still they were neither annexed with the plaint nor entered in the list of reliance.

Mr. Nagpal, learned counsel appearing on behalf of the petitioners submits that though these documents were not shown in the list of documents but these documents were vaguely mentioned in the plaint. He submits that one agreement dated 27.2.1979 was pleaded but in fact correct date of the agreement is 19th January, 1979. The learned counsel further submits that once particulars of the document have been mentioned in the plaint, the provisions of Order 7 Rule 14, CPC are complied with.

The learned counsel further submitted that a party seeking the permission of the Court to produce secondary evidence regarding the document is not required to plead and prove the loss of the document in absolute terms. In support of his submission, the learned counsel placed reliance on two decisions of this Court in Mohinder Pal Singh Vs. Surjit Singh, and Raj Kumar v. Lal Chand 1994 (1) C C C 477.

After hearing the learned counsel for the parties and having perused the impugned order, I do not find any infirmity or illegality in the well reasoned order passed by the learned trial court. It is not disputed that in the plaint, the agreement alleged to have been pleaded was dated 27.2.1979, whereas the agreement sought to be proved by secondary evidence is dated 19th January, 1979. Similarly, about the alleged payment of Chakota, date and amount of the Chakota receipts were not pleaded in the plaint. Keeping in view these facts, the learned trial Court came to the conclusion that the plaintiff/petitioners were not entitled to lead secondary evidence with regard to documents which were not correctly pleaded in the plaint nor any list of documents containing the particulars of those documents was filed along with the plaint. The reasons given by the learned trial Court are valid reasons and I am of the opinion that the impugned order does not call for any interference in the jurisdiction u/s 115 CPC.

As regards the judgment in the case of Mohinder Pal Singh (supra) relied upon by the learned counsel for the petitioners, I am of the opinion that this judgment is of no assistance to the petitioners as in that case it was held that an application for secondary evidence cannot be rejected solely on the ground that the factum of loss or damage of the document has not been made in the plaint. In the present case, as stated above, it is not the factum of loss or damage of the document, but on the contrary it is the document which has not been pleaded. On the same ground, the case of Raj Kumar (supra) relied upon by the learned counsel for the petitioner, is not of any assistance to the petitioners as in that case, it was only held that a party seeking the permission of the Court to produce secondary evidence regarding the document, is not required to prove the loss of the document.

In view of the above discussion, the petition is dismissed with no order as to costs.