Narvada Aggarwal @ Nishu Dalal v. Madan Lal Goel & Anr

order observed; "In the present case, mere bald averments as regards original documents being stolen, unsubstantiated by any documentary proof such as FIR etc. in respect of the same, cannot suffice to allow the defendant to lead secondary evidence. Further, the conditions of section 65 are also not fulfilled as even in view of clause C of section 65 the loss or destruction should not be on account of the party"s own default or neglect. Thus no ground of allowing the present application is made out."

¶13There is nothing on record to show that any FIR was lodged with regard to the loss of the original documents.

¶14The case law cited by learned counsel for petitioner is not at all applicable to the facts of the present case.

¶15Under these circumstances, since there is no illegality or irrationality in the impugned order passed by the trial court, present petition is hereby dismissed.

CM No. 9278/2010

¶16Dismissed.

V.B. GUPTA, J. 5th July, 2010 RB/AB

* HIGH COURT OF DELHI : NEW DELHI CM (M) No.680/2010 & CM No.9278/2010 % Judgment reserved on: 2nd July, 2010 Judgment delivered on: 5th July, 2010 Smt. Narvada Aggarwal @ Nishu Dalal W/o. Shri Raj Pal Dalal R/o. C-4/146, Sector-5, Rohini, Delhi. ….Petitioner. Through: Mr. Sunil Kumar, Adv. Versus 1. Shri Madan Lal Goel Son of Late Shri Ram Pratap Goel 2. Shri Sunil Goel S/o. Shri Madan Lal Gol Both R/o. BC-36, Miya Wali Nagar, Delhi 110087 ….Respondents. Through: Coram: HON'BLE MR. JUSTICE V.B. GUPTA 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes V.B.Gupta, J. Present petition under Article 227 of the Constitution of India has been filed by the petitioner against impugned order dated 18th February, 2010 passed by Civil Judge, vide which application of the petitioner seeking permission to lead secondary evidence under Section 65 of the Indian Evidence Act, 1872 (for short as "Act") was dismissed. 2. Respondents herein had filed a suit for possession, recovery of rent, mesne profit and for mandatory injunction against the present petitioner. In the suit, defence of petitioner is that premises in question was let out to her by respondent No.2 on 1st April, 2004. At the time of letting out the premises, a sum of Rs.2.5 lacs in cash was taken by respondent No.2 as pagri and the rent was fixed at Rs. 1,250/- p.m. A receipt of Rs.2.5 lacs as pagri was separately executed by respondent No.2. 3. On 2nd December, 2004, respondent No.2 approached the petitioner and demanded for financial help. The petitioner offered respondent No.2 to purchase the suit property to which respondent No.2 agreed. Petitioner paid Rs.50,000/- to respondent No.2 towards part payment. To the misfortune of the petitioner, on 11th December, 2004 when she parked her car outside her beauty parlor, it was stolen there. The petitioner has kept a bag in her car containing receipt of pagri/security money, receipt of Rs. 50,000/- and some other rent receipts. The police was able to trace out the car but the bag lying in the car was missing. Under these circumstances, the petitioner moved an application under Section 65 of the Act, seeking permission to prove her documents by way of secondary evidence. 4. It is contended by learned counsel for petitioner that since the bag containing relevant documents was stolen, the petitioner has no option but to prove the original documents which were stolen, by way of secondary evidence. In support of its contentions, learned counsel for petitioner cited a decision reported as Jogu v. Smt. Bhiki AIR 1983 Himachal Pradesh 13. 5. Article 227 of The Constitution of India reads as under; "227. Power of superintendence over all courts by the High Court- (1) Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. (2) Without prejudice to the generality of the foregoing provisions, the High Court may- (a) call for returns from such courts; (b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and (c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts. (3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practicing therein; Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor. (4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed forces." 6. In Mohammed Yusuf Vs. Faij Mohammad and Ors., 2009 (1)S