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Judgment
. Rule. Rule made returnable forthwith.
Feeling aggrieved by the order dated 21.04.2023 passed by learned Joint Civil Judge Senior Division, Ambad below Exhibit-53 in Special Civil Suit No.26 of 2021, the petitioner/plaintiff therein is before this Court.
3. SUBJECT MATTER
Subject matter of the Writ Petition is the refusal by the Trial Court to permit the plaintiff to lead secondary evidence as regards to an agreement dated 03.11.2015 purportedly executed between the plaintiff, the defendant and their two real brothers.
Heard both the learned Advocates for the respective parties.
4. SUBMISSIONS
Mr. V. V. Udhan, learned Advocate for the petitioner submits that the relationship between the parties is not at all disputed. The plaintiff and the defendant had two other real brothers namely Sudam and Dattu. In the meantime, Dattu expired leaving behind his son Laxman as his legal heir. It is his contention that a residential house situated at Gut No.32 of Village Mahakala Tq. Ambad, Dist. Jalna which was jointly owned by all the brothers was acquired for the purpose of National Highway No.211.
Mr. Udhan submits that although the property stood in the name of the defendant Rama, in fact the same was jointly owned by all the four brothers. When the compensation was to be received from the authorities on account of acquisition of land, an agreement came to be executed by defendant Rama in favour of his three brothers including the plaintiff. Rama agreed to apportion the compensation equally amongst all of them. Since, Rama resiled from his commitment, the plaintiff/petitioner was constrained to file the present suit.
Suffice to note, the suit was filed only against Rama. The other two brothers were not made parties to the suit. In the said suit, the plaintiff filed present application at Exhibit-53 seeking leave of the Trial Court to prove the agreement by leading secondary evidence by taking recourse to Section 65(c) of the Indian Evidence Act. It was submitted that the original agreement was in the custody of other brother namely Dattu, who subsequently expired leaving behind his son Laxman as his legal heir. Laxman, on occasions informed the plaintiff that the original was in the custody of his father and the same is lost. On that basis, an application came to be filed by the plaintiff seeking leave to adduce secondary evidence to prove the said agreement. The said application was opposed by the defendant.
After hearing both the parties, learned Trial Court pleased to reject the application vide the impugned order dated 21.04.2023.
Mr. Udhan, learned Advocate submits that the Trial Court has not considered the fact that Laxman has informed the plaintiff that the original agreement was with his deceased father and that was subsequently lost. Mr. Udhan was at pains to submit that although Laxman had initially informed the plaintiff that the original agreement was with his father, subsequently at the instance of the defendant, he filed an affidavit stating that such agreement never existed. Contending that the entire suit is based on the said agreement, Mr. Udhan submits that the Trial Court ought to have applied Section 65(c) of the Indian Evidence Act in proper perspective and ought to have allowed the application.
Mr. A. B. Bhagat h/f Mr. G. P. Darandale, learned Advocate would advocate the findings rendered by the Trial Court and pray to dismiss the application.
5. CONSIDERATION
Section 65(c) of the Indian Evidence Act reads thus:
65. Cases in which secondary evidence relating
to documents may be given. Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:
(a)….
(b)….
(c)when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
In the case in hand, the said agreement is said to be in the custody of deceased Dattu. Dattu, however was never made party to the suit at any point of time. A copy of the said agreement is before me at page no.14 (Exhibit-A). There is no recital in the agreement suggesting that it was agreed by the parties that the original shall be kept with Dattu or anyone of them. Much emphasis has been placed on the subsequent Sammati Patrak executed on the same date. However, there is also no recital or reference that the original agreement was kept in the custody of deceased Dattu. Although a statement is made that Laxman i.e. son of deceased Dattu informed the plaintiff that the original was with his deceased father and subsequently it was lost, however as a matter of fact it is a bare verbal statement from the plaintiff himself.
On the other hand, Laxman has filed affidavit before the Court denying existing of such document. To seek leave from the Court to prove the document through secondary evidence, the first contention is to prove about existence of the very document. The Trial Court has recorded the finding in negative as regards to such contention of the plaintiff.
For the reasons recorded above, I also find that the plaintiff could not prove that original of such document ever existed and that was in the custody of deceased Dattu so as to held that it was subsequently lost. I do not find any error in the findings recorded by the Trial Court.
In view of the above, I pass following order:
ORDER
a. Writ Petition stands dismissed. b. The Trial Court is requested to proceed with the suit and to conclude the same within a period of twelve months from today.
c. Parties are at understanding that they shall not seek any unnecessary adjournment and shall cooperate with the Trial Court for speedy disposal of the suit.
d. Rule stands discharged.