YOGESH SHIVHARE Vs. NARMADA DEVI AND OTHERS

JUDGEMENT

(1.) With consent of the parties, the matter is heard finally.

(2.) Learned counsel for the petitioner submitted that the original document itself was not admissible in evidence, therefore, the application under Section 65 of the Evidence Act could not have been entertained. In support of the aforesaid submission, learned counsel for the petitioner has placed reliance on a decision of the Supreme Court in the case of Hariom Agrawal Vs. Prakash Chand Malviya, (2007) 8 SCC 514. On the other hand, learned counsel for the respondents has supported the order passed by the trial Court.

(3.) I have considered the submissions made by learned counsel for the parties and have perused the record. The trial Court vide impugned order dated 24.9.2015 has allowed the application under Section 65 of the Evidence Act only on the ground that the original agreement is exhibitted in the previous suit and, therefore, the permission to lead secondary evidence has been granted. The impugned order has been passed de hors the statutory provision contained in Section 65 of the Evidence Act. The impugned order not only suffers from the error apparent on the face of record, but also from the vice of non -application of mind as well. Therefore, the same cannot be sustained in the eye of law. Accordingly, the impugned order is quashed. The trial Court is directed to decide the application preferred by the petitioner under Section 65 of the Evidence Act afresh, by a speaking order. Needless to state that it would be open to the petitioner to contend that the application under Section 65 of the Evidence Act cannot be allowed, as the original document in question itself is not admissible in evidence. It is made clear that this Court has not expressed any opinion on the merits of the case.