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Sawal Chand and ors. Vs. Smt. Pyari Devi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision No. 239 of 1978
Judge
Reported in1978WLN(UC)415
AppellantSawal Chand and ors.
RespondentSmt. Pyari Devi and ors.
DispositionApplication rejected
Cases ReferredSital Das v. Sant Ram and Ors.
Excerpt:
.....act - section 65--secondary evidence--permission for production of secondary evidence regarding rent note--no irreparable injury if permitted to produce it--district court right granted permission.;after considering the provisions of section 65(a) of the act. learned district judge rightly permitted the plaintiffs to produce the secondary evidence in respect of the rent note as at that time objections regarding insufficiency of stamp and want of registration were not raised before him.;i am also not satisfied that the order under revision has occasioned any failure of justice or that it would cause irreparable injury to the defendants even if it is allowed to stand.;revision rejected - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12..........1978, by which he granted permission to the plaintiffs to lead secondary evidence in respect of a rent note dated asoj sudi 11, samvat 2031.2. the plaintiffs submitted an application under section 66 of the evidence act (for short 'the act') stating that the original rent note dated asoj sudi 11 samvat 2031 (26-10-74) is in possession of the defendants, and in the written statement, they have denied that it is in their possesion. as the original rent note was said to be in the possession of the defendants, it was prated that the plaintiffs may be permitted to lead secondary evidence in respect of it. this application was moved on december 13, 1977. the defer cant 8 contested it by filing a re ply to it on january 20, 1978.3. subsequently, oh march 17,1978, the plaintiffs submitted.....
Judgment:

S.K. Mal Lodha, J.

1. This is a defendant's revision, filed against the order of the learned District Judge, Jalore, dated July 12, 1978, by which he granted permission to the plaintiffs to lead secondary evidence in respect of a rent note dated Asoj Sudi 11, Samvat 2031.

2. The plaintiffs submitted an application under Section 66 of the Evidence Act (for short 'the Act') stating that the original rent note dated Asoj Sudi 11 Samvat 2031 (26-10-74) is in possession of the defendants, and in the written statement, they have denied that it is in their possesion. As the original rent note was said to be in the possession of the defendants, it was prated that the plaintiffs may be permitted to lead secondary evidence in respect of it. This application was moved on December 13, 1977. The defer cant 8 contested it by filing a re ply to it on January 20, 1978.

3. Subsequently, oh March 17,1978, the plaintiffs submitted another application purporting to be under Section 65 and 66 of the Act praying therein that the defendants may be directed in produce in court the rent note dated Asoj Sudi 11, Samvat 2031. On the same day, another application under Order XI, Rule 14 C.P.C. was submitted on behalf of the plaintiffs with a prayer that the defendants may be directed to produce the aforementioned rent note in court. Notice under Order XII, Rule 8 C.P.C. was given by the learned Counsel for the plaintiffs to the learned Counsel for the defendants for the production of the aforesaid original rent note, This notice was given on March 17,1978. An affidavit dated March 24, 1978 of the plaintiff Bhanwarlal, was submitted in the trial court on March 28, 1978. In that affidavit, it was, inter alia, mentioned that the original rent note is in possession and power of the defeidant Sawal Chand. The application purporting to be under Section 65 and 66 of the Act Was also opposed by the defendants vide their reply dated April 20, 1978 An affidavit of Sawal Chand was also filed in the trial court en April 20, 1978 stating amongst others that no rent note dated Asoj Sudi 11, Samvat 2031 was executed by him and that the alleged rent note is not in his possession or power. The defendants also opposed the plaintiff's application under Order XI, Rule 14 C.P.C. by filing a written reply dated April 20, 1978.

4. The learned Civil Judge, by his order dated July 12, 1978, accepted the plaintiff's applications and accorded permission to the plaintiffs to lead secondary evidence regarding the rent note dated Asoj Sudi 11, Samvat 2031, as the case was covered by Section 65(a) of the Act.

5. Being aggrieved by this order, the defendants have come up in revision as aforesaid.

6. In pursuance of the notice to show cause as to why the revision be not admitted, Mr. G.R. Singhvi for Mr. J.L. Saraf, learned Counsel for the plaintiffs-non petitioners, appeared.

7. I have heard Mr. H.M. Parekh, learned Counsel for the petitioner and Mr. G.R. Singhvi, learned Counsel for the non-petitioners. It was argued by Mr. G.R. Singhvi that no interference can be made with the order under revision Under Section 115 CPC Section 115 provides that the High Court shall not, under this section, vary or leverse any order made in the course of the suit or other proceedings, except where the order, If allowed to stand, would eccasion a failure of 'justice or' cause, irreparable injury to, the party against whom it was made. According to the leaned counsel for the non-petitioners, the conditions that the order under revision had occasioned a failure of justice or it would cause irreparable injury to the defendants against whom the order was made are not satisfied. He further submitted that even if the order under revision is erroneous, the consequence, of the order is that the plaintiffs would lead secondary evidence in regard to the existence, condition or contents of the rent note dated Asoj Sudi 11, Samvat 2031. As such evidence, according to the learned Counsel for the defendants-petitioners, is inadmissible, it can be made a ground of appeal as and when it is lodged and, therefore, neither of the conditions, namely failure of justice or irreparable injury is satisfied'. In addition to this, on the bans of the decision in Rajasthan State Road Transport Corporation, Jaipur v. Kalawati 1977 RLW 87, he contended that the order permitting secondary evidence in regard to the existence, condition or contents of the rent note is not revisable. Mr. Parekh, learned Counsel for the petitioners on the other hand, invited my attention to Sital Das v. Sant Ram and Ors. : AIR1954SC606 , wherein it was held that foundation must be first laid for the reception of the secondary evidence under Section 65 of the Act and according to him since no such foundation for its reception has been laid, the learned District Judge exercised his jurisdiction illegally or of any race with material irregularity in permitting the plaintiffs to lead secondary evidence in respect of the rent note.

8. I have carefully gone through the order under revision and am satisfied that after considering the provisions of Section 65(a) of the Act. learned District Judge rightly permitted the plaintiffs to produce the secondary evidence in respect of the rent note as at that time objections regarding insufficiency of stamp and want of registration were not raised before him. In Rajasthan State Road Transport Corporation's case 1977 RLW 87 non-petitioners Nos. 1 to 9 moved an application praying therein that they may be permitted to produce secondary eviderce in regard to the existence and conditions of the articles which were seized by the police. The Motor Accidents Claims Tribunal (District Judge, Pali) allowed the application. Against that order, the revision was filed While dismissing the revision, on the ground that a Claims Tribunal constituted under Section 110 of the Motor Vehicles Act is not a Civil Court subordinate to the High Court within the meaning of Section 115 of the Code of Civil Procedure, the learned Judge made the following observations in para 7:

Even otherwise I am of the opinion that the imppgned order does not fall within the arbit of the clause of Section 116 CPC.

The impugned order, in that case, was the permission to produce secondary evidence in regard to the existence and conditions of the articles. The learned Counsel for the petitioner could not satisfy me that the learned District Judge has committed any illegality or material irregularity in passing the order under revision en the ground that the case of the plaintiffs, for leading seconday evidence was covered by Section 65(a) of the Act. I am also not satisfied that the order under revision has occasioned any failure of justice or that it would cause irreparable injury to the defendants even if it is allowed to stand.

9. In these circumstances, no case of interference with the order under revision is made out.

10. It was nest contended by Mr. Parekh that the rent note, in respect of which secondary evidence was permitted by the learned District Judge is insufficiently stamped and unregistered. According to him, it is inadmissible in evidence and as such the plaintiffs are not entitled to lead secondary evidence about its existence, condition or contents. I may state at once that the objections regarding insufficiency of stamp and want of registration were not taken before the learned District Judge at the time of disposal of the plaintiffs' applications for permission to lead secondary evidence. On July 28, 1978, an application was moved on behalf of the defendants that the rent note in dispute being insufficiently stamped and unregistered is inadmissible in evidence and, therefore, secondary evidence in respect of it, should not be recorded. This application has not been disposed of by the learned District Judge as yet. On July 29, 1979, the learned District Judge ordered that the copy of the application dated July 28, 1978 be supplied to the learned Counsel for the plaintiffs and the case was posted for reply a ad arguments on August 3, 1978.

11. It is, therefore, clear that the application of the defendants dated July 28, 1978 containing the objection that secondary evidence in respect of the rent note, should not be permitted as the rent note is insufficiently stamped and unregistered, is still pending before the trial court It is hoped that the learned District Judge will dispose of this application of the defendants in accordance with law. It is, however, made clear that this order & the observations made here in above should not preclude him from reexamining the mater relating to the granting of permission in regard to the secondary evidence in the light of the objections incorporated in the defendants' application dated July 28, 1978.

12. As no case for interference is made out in this revision-application, it is rejected summarily without any order as to costs.


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