HULAS DEVI Vs. RAJ KUMAR AND OTHERS

JUDGEMENT

(1.) - Heard learned Counsel for the petitioner.

(2.) Petitioner is aggrieved against the order of the trial Court dated 9th Aug., 2004 by which the trial Court allowed the application of the respondents filed under Sec. 65 of the Evidence Act.

(3.) The brief facts of the case are that the petitioner plaintiff filed a suit for redemption of mortgage dated 7th May, 1982. Before the trial Court defendant submitted his written statement and took the plea that said mortgage redeemed and for that purpose necessary endorsement was made on the original mortgage deed itself. The defendant alleged that the original mortgage deed having endorsement of redemption of mortgage is lying with the plaintiff petitioner. The defendant submitted an application under Order 11 Rule 12 Code of Civil Procedure on 9th Aug., 1999 and sought direction from the Court for production of the original mortgage deed by the plaintiff. The plaintiff submitted that the original mortgage deed is tying with the defendant himself. The defendant also submitted an application under Sec. 65 of the Evidence Act and prayed that the photostat copy of the original mortgage deed containing the endorsement of redemption mortgage may be admitted in evidence as secondary evidence as plaintiff has not produced the original mortgage deed. The trial Court has dismissed the application dated 24th April, 2001 filed by the defendant under Sec. 65 of the Evidence Act only on the ground that copy which was produced by the defendant cannot be admitted in evidence as above copy is not either certified copy or correct and true copy of the original document which can be admitted in evidence in view of Sec. 63 of the Evidence Act. While rejecting the defendant's application, the trial Court observed that defendant may obtain certified copy of the mortgage deed, obviously, from the office of registering authority, and may produce the same in Court upon which permission to produce document is Secondary evidence may be granted.