Smt. Usha Gupta vs Saurabh Soni

Heard.

The instant petition is against the order dated 23.02.2018 whereby an application under Section 65 of the Indian Evidence Act, 1872 (for short 'the

Act, 1872') to lead secondary evidence in respect of the photocopy of the agreement dated 17.07.2005 has been rejected.

Learned counsel for the petitioner submits that in a suit for specific performance when the notice was served initially before filing of the suit,

photocopy of the agreement was sent along with the notice to the plaintiff/petitioner, however, when the suit was filed for specific performance, the

original found to be different, as such when the application under Section 65 of the Act, 1872 was filed to prove the same as secondary evidence it

was rejected. He further submits that when it is a case of the defendants that the photocopy of the agreement was sent along with the notice before

filing of suit by plaintiff, therefore, in such case the Court should have allowed the application to lead secondary evidence.

Perusal of the order would show that the application under Section 65 of the Act, 1872 was rejected on the ground that the original of the

agreement is already on record, therefore, permission to lead secondary evidence to prove the same cannot be allowed. Section 65 of the Act, 1872

purports that permission can only be granted when the original has been destroyed or lost then the secondary evidence of the document can be

produced. Therefore, when it is the case of the parties that the original is already on record, if the secondary evidence is allowed adduced then it will

destroy the admissibility of the original document which is already been exhibited. If it is the case of the defendants that the copy of the agreement

which was sent along with notice, he may lead evidence on that but the application under Section 65 of the Act, 1872 cannot be allowed when the

original is said to be already on record.

In the circumstances, in the facts of this case, in view of the law laid down by the Supreme Court in the matter of Bipin Shantilal Panchal Vs. State

of Gujrat {2001 AIR SCW 841} (Three Judges Bench), the petitioners are allowed to mark the photocopy of the agreement as exhibit and the Court

shall decide the admissibility of the document at the time of final adjudication.

With such observation, the petition stands disposed of.

Certified copy today.