Important Point
Application seeking leave of Court to adduce secondary evidence cannot be rejected on the ground of doubtful veracity of the document sought to be produced without affording an opportunity of adducing secondary evidence.

Judgment

R.C. Lahoti, J.-Leave granted.

2. The appellant has filed a suit for permanent preventive injunction restraining the defendant-respondent from interfering with the posses­sion of the appellant. The appellant alleges himself to be a tenant in the suit shop induct by the defendant-respondent as per rent note dated 23.9.94. The tenancy is seriously disputed by the respondent. At the trial, after having taken about 14 adjournments for adducing evidence, the appellant moved an application seeking production of the rent note from the custody of the respondent, which application was rejected by the trial Court. On the next date of hearing the appellant moved an application seeking leave of the court for produc­tion of secondary evidence of the rent note date of 23.9.94, which application has also been rejected by the trial Court. This order was challenged by the appellant by filing a civil revision before the High Court which has been dismissed.

3. Having heard the learned counsel for the parties, we are of the opinion that the trial Court was not justified in rejecting the prayer seeking leave of the court for production of secondary evidence. The prayer has been rejected mainly on the ground that the copy of the rent note sought to be produced by the appellant was of doubtful veracity. The trial court was not justified in forming that opinion without affording the appellant an opportunity of adducing secondary evidence. The appellant has alleged the original rent note to be in possession of the respondent. The case was covered by clause (a) of Section 65 of the Indian Evidence Act, 1872.

4. Learned counsel for the respondent submitted that the appellant was protracting the trial and being in possession of the premises was interested in delaying the hearing of the suit. That may or may not be true but the fact remains that that is not reason on which the rejec­tion by the trial Court is founded. In our opinion, the ends of jus­tice would be satisfied if the appellant is allowed an opportunity of adducing secondary evidence but subject to terms.

5. The appeal is allowed. The impugned order of the trial Court dated 3.2.98 and the order of the High Court dated 16.9.98 passed in revi­sion are both set-aside. The appellant is granted leave of adducing secondary evidence of the existence, condition and contents of the rent note dated 23.9.1994. The trial court shall appoint a date on which the appellant shall have the liberty of adducing such secondary evidence as he may choose to do but if he fails to adduce such evi­dence on the appointed date, he shall not be entitled to an adjourn­ment for the purpose. The appellant shall also be liable to pay costs quantified at Rs. 5000/- (Rupees five thousand only) to the respond­ent, having regard to all the circumstances.

6. We make it clear that we have neither formed nor expressed any opinion touching the merits of the controversy in issue before the trial Court.

7. The appeal stand disposed of in the above said terms.

(C.R.) Appeal disposed of accordingly

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