(1.) The present petition under Article 227 of the Constitution of India has been preferred by the petitioner/plaintiff against the order dated 6/2/2018 passed by trial Court; whereby, the application preferred by the petitioner as plaintiff under Section 65 of the Evidence Act, has been rejected.
(2.) Precisely stated facts of the case are that a suit for declaration of right and permanent injunction was filed by the petitioner/plaintiff in respect of suit property. Written statement was filed by the defendants denying the averments as pleaded in the plaint. It is also pleaded that plaintiff is not the owner of the property. Along-with the plaint, copies of several documents were filed by the plaintiff before the trial Court but the original documents of said photocopies were not available and could not be found and therefore, an application for leading secondary evidence under Section 65 of the Evidence Act was filed and it was prayed that in respect of the documents mentioned in the list of documents, petitioner/plaintiff be permitted to lead secondary evidence. The defendants contested the said application. Trial Court dismissed the aforesaid application, therefore, petitioner/plaintiff is before this Court.
(3.) According to learned counsel for the petitioner order impugned is passed contrary to the provisions of Sections 63 and 66 of the Evidence Act. Existence of original documents were not disputed nor denied by the defendants. Photocopies of the documents were filed along-with suit but since the original documents were not available,therefore, the application under Section 65 of the Evidence Act has been preferred. The impugned order is arbitrary and illegal, therefore, deserves to be set aside.