GULAB YADAV Vs. RAMU RAM YADAV

JUDGEMENT

(1.) Both these writ petitions have been filed against the order dated 12.10.2018 passed by Addl. District and Sessions Judge No. 9, Jaipur District Jaipur in Civil Suit No. 19/2006 and 8/2006 respectively whereby the application filed by the petitioner-defendant (hereinafter referred to as 'the defendant') under Section 65 of the Evidence Act has been dismissed. Facts of the case are that the respondent-plaintiff (hereinafter referred to as 'the plaintiff') filed a Civil Suit against the defendant for declaration, cancellation of registered Gift Deed dated 6.2.2003/5.2.2003 and permanent injunction against the defendants. Summons were issued and the defendants put in appearance. The defendants filed the written statement stating that the disputed property is an ancestral one purchased through Joint Hindu Family Income. The defendant moved an application under Order 11 Rules 12 and 14 C.P.C. for producing the original partition deed, family settlement and map etc. from the plaintiff. The plaintiff filed reply to the said application stating that the said documents were not in his power and possession. The Trial Court vide its order dated 17.7.2017 rejected the said application. Thereafter, the defendant filed an application under Section 65 of the Evidence Act for filing secondary evidence on record. The plaintiff filed reply to the said application. The Trial Court vide its order dated 12.10.2018 dismissed the said application.

(2.) Hence these writ petitions have been filed.

(3.) Learned Counsel for the defendant submitted that the defendant had already produced the photo copies of the above documents, but he could not get the originals thereof as they are in the power and possession of the plaintiff. The Trial Court, without considering this aspect of the matter, dismissed the applications filed by the defendant. He has further submitted that existence of the original documents was not denied by the plaintiff, therefore, photostat copies of the said documents are genuine and documents ought to be taken on record as secondary evidence. He has further submitted that as per provisions of law, photostat copies of the documents can be allowed to be produced in absence of original documents. The learned Trial Court has utterly failed to consider this aspect of the matter, therefore, the impugned order is liable to be quashed and set-aside.