ORDER :

SACHIN SHANKAR MAGADUM, J.

1. The captioned writ petition is filed by the plaintiff challenging the order passed by the court below on I.A. No. 5 filed under Section 65 of the Indian Evidence Act r/w Section 151 of CPC.

2. Petitioner is the owner of the suit property. The present suit is filed against respondents/defendants to handover the vacant possession. The petitioner has filed the present suit by specifically contending that he has let out the suit property to the respondents/bank and there is a clause to seek enhancement of rent at the rate of 25% after every five years. The suit is filed contending that there is default in payment of rent by respondents/bank.

3. During the pendency of the suit, petitioner filed an application under Order 16 Rule 6 of CPC calling upon defendants/bank to produce the original lease agreement dated 09.10.2003. The said application was objected by defendants/bank by contending that such an application is not maintainable. It was also specifically denied that original unregistered lease agreement dated 09.10.2003 is not in the custody of the bank. The learned Judge rejected the said application on the ground that since respondents/bank has taken a specific contention that original rent agreement is not in the custody of defendants/bank, question of issuing direction would not arise. In this background, it appears the present petitioner filed an application in I.A. No. 5 under Section 65 of the Evidence Act r/w Section 151 of CPC. The present petitioner sought permission to produce the photocopy of the lease agreement to corroborate and substantiate his case. The said application was strongly resisted by the respondents/bank. The learned Judge has proceeded to reject the application by holding that no grounds are made out to production of photocopy of the lease agreement dated 09.10.2003 as a secondary evidence. The learned Judge was of the view that Xerox document cannot be permitted to be marked, when there are no material regarding existence of original document. In that view of the matter, the learned Judge was of the view that petitioner cannot be permitted to rely the photocopy of lease agreement by way of secondary evidence.

4. Learned counsel for the petitioner would vehemently argue and contend before this court that respondents/bank is in custody of original lease agreement. He would further take this court to para 13 of the written statement and contend that there is no dispute that respondents/bank was inducted by the petitioner. He would rely on para 13 of the written statement and contend that respondents/bank has not at all disputed the terms and conditions of the lease agreement. To buttress his arguments, he would place on reliance on the judgment rendered by coordinate bench of this court in Shivalingamma and Others Vs Revansiddappa since deceased by LRs and Others 2020 (1) KCCR 854. Placing reliance on this judgment, he would submit to this court that, in the said case also the plaintiff has taken a specific contention that original unregistered partition deed is in the custody of the defendants. The said contention was denied by defendant No. 1. This court however reversed the order of the trial court and permitted the plaintiff to rely the photocopy and produce it as secondary evidence. This court was of the view that even in the absence of an application, there is no bar for the court to consider the said application on the basis of material on record. On these set of grounds, he would submit that the order under challenge needs to be set aside.

5. Per contra, learned counsel for the respondents/bank would vehemently argue and contend before this court that, the present petitioner has not produced any prima facie material to demonstrate that original lease agreement is in the custody of the bank. When such an assertion made by the petitioner is stoutly denied by the bank, question of permitting the petitioner to rely on the photocopy as secondary evidence cannot be ent