The petitioner is a plaintiff in a suit for the specific performance filed against the respondents through which, he seeks the enforcement of the agreement to sell dated 21.3.1997, regarding the Bungalow in dispute, allegedly executed by the respondents and also claims to have made the payment of the amount of Rs, 50,00,000/- as the advance money. Alongwith the suit, the photo copies of the agreement to sell and the receipt of the advance/earnest money amounting to Rs, 50,00,000 were also filed; but the execution of the documents and the receipt of consideration has been vehemently denied by the respondents. It may be pertinent to mention here that the respondents have also filed two suits, one for the cancellation of the same agreement to sell and the other for the possession of the suit property. All these cases have been consolidated; when the case of the petitioner reached the stage of his evidence, he moved an application under Article 76 of the Qanun-e-Shahadat Order, 1984 (the Order), asserting that the agreement to sell and the receipt in original, are lost and therefore, he should be permitted to produce/adduce secondary evidence. Alongwith the application, the petitioner appended the Rapt, which he got registered with the concerned police station about the loss of documents. The learned trial Court, instead of inquiring into the matter, within the purview of Article 76 ibid has summarily dismissed the application, holding that "The petitioner did not file this document with his plaint as required by the C.P.C. The photo copy of a document, which was categorically denied by the defendant/respondent does not come within the purview of Section 74 Qanun-e-Shahadat Order, 1984, therefore, the production of photo copy is not admissible in evidence u/S. 76 Qanun-e- Shahadat Order, 1984; it will highly prejudice the case of defendants, therefore, the application is dismissed."
2. Learned counsel for the petitioner by relying upon the Articles 74 and 76, states that it is the right of the petitioner to produce the secondary evidence of the documents, which he is able to prove that the originals has been lost. It is further stated that alongwith the suit, the photocopies of the original agreement and the receipt were also appended, the petitioner was obliged to tender the original documents at the time of evidence, and these are the two documents upon which his suit is based, therefore, the view of the Court below that original should have been filed alongwith the plaint/suit and the omission in this behalf, disentitle the petitioner to adduce secondary evidence is illegal and misconceived.
3. Heard. According to Article 75 of the Order, a party to a matter is required to prove a document by primary evidence, which undoubtedly means the production of the document itself in original.
However, the possibility that the original document may get destroyed or lost cannot be ruled out.
Thus ire such an eventuality, the provisions of Article 76, allows a party to lead secondary evidence of the document in terms of Article 74. But this should not be allowed as a matter of course or right to the concerned, but the party asking for secondary evidence should be put to the strict test of proof not only about the loss of the document, but also its very existence, especially in the cases, where the execution of the document has been denied by the other side. Obviously, this can be done only if the claimant party is enabled to produce evidence to both the above effect.
Unfortunately, in the present case, this exercise has not been conducted by the Court below, rather the Court has fallen prey to extraneous considerations, loosing sight of the fact that the said documents are those upon which the petitioner has based his claim and in legal parlance are termed as documents "sued upon". Therefore, such documents could in the originals be tendered by the petitioner at the turn of his evidence. However, if the original document before the evidence stage is arrived, has been lost or destroyed etc. and for such reason, the party is precluded to adduce the document itself; resort could always be had to Article 76 of the Order, and upon strict proof about the existence, execution and loss of the document, the secondary evidence can be permitted. But this could only be done after enabling the parties to adduce evidence in this behalf.
The impugned order, which does not conform to the above rules, cannot be sustained and is hereby set aside. This petition is therefore, accordingly allowed with the direction that the Court below shall decide the petitioner' application for adducing evidence afresh in accordance with law.