Mahaveer Kumar Jain vs Atal Bihari Tamrakar

Hon''ble Mr. N.K. Mody, J.—Heard on admission.

Being aggrieved by the order dated 27-4-2011 passed by the 2nd Additional District Judge, Vidisha in COS No. 2-A/2011, whereby the applications filed by the petitioner under Order VI Rule 17, CPC and u/s 65 of the Evidence Act were dismissed, present petition has been filed.

Short facts of the case are that the petitioner filed a suit for specific performance of the agreement. In that suit at the stage of evidence, two applications were filed by the petitioner, which were dismissed against which present petition has been filed.

Learned Counsel for the petitioner argued at length and submits that the impugned order passed by the learned Court below is incorrect, illegal and deserves to be set aside. It is submitted that petition filed by the petitioner be allowed and the impugned order be set aside.

Learned Counsel for the respondent submits that no illegality has been committed by the learned Court below in dismissing the applications filed by the petitioner. It is submitted that petition filed by the petitioner be dismissed.

After hearing the learned Counsel for the petitioner, this Court is of the view that the case was at the stage of evidence as it is only affidavit which was filed under Order XVIII Rule 4, CPC and cross-examination has yet to take place. Therefore, learned Court below committed error in dismissing the application on the ground that trial has commenced. Even if trial is commenced, then too, to resolve '' the controversy between the parties, since then proposed amendment is necessary. However, since there was delay in moving the application, therefore, same is allowed subject to cost of Rs. 2,500.00. So far as other application filed u/s 65 of the Evidence Act is concerned, the petitioner has prayed to adduce secondary evidence to prove paper cuttings. For this photocopies of the applications have been filed and in the application which is supported by an affidavit, it is mentioned that originals are not available in spite of best efforts made by the petitioner.

Keeping in view, the law down by this Court in the matter of Tawar Singh Vs. Ranjit Singh, 2001 (I) MPWN-SN 54, wherein this Court has held that in a case, where the original papers have been lost due to lapse of time, photocopies thereof should be allowed to be adduced as secondary evidence, this Court is of the view that learned Court below committed error in dismissing the application filed by the petitioner. So far as admissibility of document is concerned, respondent is at liberty to raise objection. In view of the aforesaid observation, petition stands disposed of. No order as to costs.