SAJJAN DEVI KOTHARI Vs. NAGAR SUDHAR NYAS

JUDGEMENT

(1.) This writ petition under Article 227 of the Constitution of India has been filed by the petitioner-plaintiff (for short, 'the plaintiff) against the order dtd. 13/8/2019 passed by the Trial Court in Civil Suit No. 28/20213, whereby the application filed by the respondents-defendant No.3 (for short, 'the defendant) under Order 8 Rule 1 (3) readwith Sec. 151 CPC and Sec. 65 of the Evidence Act have been allowed and the documents submitted by the defendant as secondary evidence have been taken on record.

(2.) Facts of the case are that the plaintiff filed a suit seeking declaration for cancellation of lease deed. The defendants filed their written statement. Necessary issues were framed. The defendant no.3 filed two applications : (i) under Sec. 8 Rule 1(3) readwith Sec. 151 CPC for taking the documents on record; and (ii) under Sec. 65 of the Evidence Act for producing secondary evidence in respect of agreement dtd. 24/5/1989, order dtd. 21/5/2003 and agreement dtd. 15/2/2013. The plaintiff filed reply of both the applications. The Trial Court vide its order dtd. 13/8/2019 allowed both the applications of the defendant subject to payment of cost of Rs.2000.00 and took the documents on record. Hence, this writ petition.

(3.) It is submitted by learned counsel for the plaintiff that without deciding the admissibility of the documents, application under Sec. 65 of the Evidence Act has been allowed by the trial court. He further submits that the trial court has failed to consider the objections raised in reply to the applications and thus, committed material illegality. On this count, the impugned order is liable to be quashed and set-aside.