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Judgment
At the outset, Shri J. B. Gandhi, learned counsel submits that he has instructions to appear for respondent No.1 also and undertakes to file his vakalatnama/appearance within three working days from today.
In that view of the matter, petition is heard finally.
Rule. Rule made returnable forthwith. Heard finally with the consent of the learned counsel for the parties.
The present petition challenges the order dated 09/08/2024 passed below Exhibit-73 in Special Civil Suit No.24/2012 by the 2nd Jt. Civil Judge (Senior Division) Washim.
The facts which are more or less undisputed are as under :
The petitioner who is the original plaintiff filed a civil suit seeking specific performance of two documents First is dated 09/02/2011 which a ‘issar chitthi’ and second dated 11/02/2011 which is an agreement of sale executed between the parties. After issuance of suit summons, defendants in the matter appeared and the trial ensued after framing issues. On 22/02/2022 an affidavit as contemplated under Order XVIII Rule 4 of the Code of Civil Procedure, 1908 in lieu of examination-in-chief was filed. Thereafter the matter proceeded. It is the case of the petitioner that on 08/08/2022 during his travel, he unfortunately lost those two documents which formed basis of the suit for specific performance. Diligently enough, the plaintiff-petitioner herein filed an FIR with the concerned Police Station.
Accordingly, on 22/11/2022 an application was filed under the provisions of Sections 63 and 65 of the Indian Evidence Act to lead secondary evidence on those documents. It is this application which is rejected by way of impugned order.
I have heard Shri M. G. Sarda, learned counsel for the petitioner and Shri J. B. Gandhi, learned counsel for the respective respondents.
Shri Sarda, takes me through the plaint and states that in a suit for specific performance if the basis of those documents having been lost, it was obligatory on the part of the trial Court to allow the plaintiff to lead secondary evidence on those documents. By taking me through the impugned order, Shri Sarda points me out that the trial Court has not considered the provisions of Sections 63 and 65 of the Evidence Act and the only question which has weighed with the trial Court while rejecting the application is that there is no endorsement on the list of documents which is to be filed along with the suit or the evidence affidavit Exhibit-4. He therefore submits that the order impugned is unsustainable in law warranting interference in supervisory jurisdiction.
Per contra, Shri J. B. Gandhi, learned counsel for the respondents takes me through the record of the proceedings and submits that the entire case of the plaintiff-petitioner herein is on the basis of false and concocted documents. He takes me to the notice issued on 10/02/2011 calling objections for the intended conveyance which was promptly cancelled on the next date i.e. 13/02/2011 wherein it is categorically admitted that there is no such agreement of sale executed between the parties. Taking this argument further, it is the submission of Shri Gandhi that in the said specific public notice, it has been categorically admitted that there is such agreement and therefore there is no question of seeking specific performance thereof.
Be that as it may. On thoughtful consideration of the contentions canvassed by the learned counsel for the parties, and going through the record of the matter, more particularly the impugned order, I am of the considered opinion that the trial Court has not taken into consideration the effect of Sections 63 and Section 65 of the Indian Evidence Act. As can be seen from paragraph 9 of the said order, the trial Court has proceeded to reject the application only by relying on the fact that the plaintiff has not filed original documents along with the plaint nor has filed it along with the evidence affidavit. It seems that the trial Court has lost sight of the fact that only an omission to file the original documents along with the plaint or with the evidence affidavit i.e. examination-in-chief cannot non-suit the plaintiff and infact Sections 63 and 65 of the Evidence Act is an exception to these general provisions. Nothing of this nature has been considered by the trial Court. Therefore in my considered opinion, the order impugned in the petition is not sustainable.
In that view of the matter, order dated 09/08/2024 passed by the 2nd Joint Civil Judge (Senior Division), Washim below Exhibit-73 in Special Civil Suit No.24/2012 is quashed and set aside.
Looking at the fact that some arguable points have been raised, the matter is relegated to the trial Court to decide the application below Exhibit-73 afresh by granting opportunity to the parties to advance their arguments and point out to the Court various submissions or citations in support of their respective case.
With these directions, the petition is partly allowed.
Rule accordingly. No order as to costs.