RANCHHODLAL Vs. BHERULAL

JUDGEMENT

(1.) FACTS in brief are that Applicant (plaintiff) has filed an application before the trial Court under O.9.R. 9 CPC for restoration of his suit dismissed in default of his appearance.

(2.) IN support of his contention stated in the said application, the petitioner has filed photostat copies of the case diary of the year 1995 maintained by Shri Agrawal, who was appearing for the applicant in the alleged suit. During the enquiry, the petitioner issued summons to advocate Shri Agrawal to appeal" before the Court as witness alongwith his original case diary of the year 1995. In compliance of the summons. Shri Agrawal appeared before the Court and submitted that Ms case diary with regard to year 1995 is not traceable. On the aforesaid statement of Shri Agrawal, applicant filed an application before trial Court under S. 65 of the Evidence Act permitting him to lead secondary evidence with regard to the photostat copies of the entries made in the case diary of Shri Agrawal. The trial Court by the impugned order rejected the said application. Aggrieved, the applicant has filed this revision.

(3.) ON plain reading of the aforesaid provision of the Evidence Act and in view of the statement made by Shri Agrawal before the Court, it is established that the original diary maintained by him for the year 1995, is not traceable and it is lost. As such, the applicant is entitled to lead secondary evidence to prove relevant entries made in the photostat copies of diary maintained by Shri Agrawal. The trial Court has committed an illegality in rejecting the prayer of the applicant permitting him to lead secondary evidence on the photostat copies of the entries made in the case diary maintained by Shri Agrawal.