GAKARSAB ALIAS SATI GAFAR SAB Vs. AMEER AHMAD

JUDGEMENT

(1.) THE defendant in O. S. No. 134/1985 has preferred this writ petition challenging the order dated 27-9-2004 passed on LA. No. XIII, an application filed under S. 151 of C. P. C. read with Ss. 65 and 66 of the Indian Evidence Act, rejecting the request of the petitioner to permit him to give secondary evidence in respect of the documents mentioned in the application.

(2.) THE plaintiff has filed a suit for declaration of title and for possession. The defendant is contesting the said claim and he has set up a title by himself to the schedule property on the basis of a grant certificate issued. The defendant filed I. A. XIII and sought permission of the Court to lead secondary evidence in respect of the documents mentioned therein by producing xerox copies of the same. The said application was opposed by the plaintiff. The learned trial judge has rejected the said application on the ground that the defendant has not disclosed as to when and from whom he got the xerox copies of those documents. The xerox copies of the documents are not obtained from the proper custody. The Court has to consider the question whether the documents are coming from the proper custody or not. As the defendant has not disclosed the aforesaid facts he is not entitled to produce the same as secondary evidence. Aggrieved by the said order dated 27-9-2004 the petitioner has preferred this petition.

(3.) LEARNED counsel for the petitioner assailing the impugned order contends the defendant made an application to the concerned authorities to summon the aforesaid documents. The authorities who were examined by the plaintiff have deposed that they arc not in possession of the said documents. However, as the defendant had obtained xerox copies of these documents, he sought permission of the Court to produce the same as secondary evidence as It is permissible under Ss. 65 and 66 of the Indian Evidence act. The Court below was not justified in rejecting the said request.