A party is entitled to adduce secondary evidence of a document if the original document is in the possession or control of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66 of the Indian Evidence Act, 1872, such person does not produce it.

Subrata Talukdar, J.

In this application under Article 227 of the Constitution of India the petitioner has challenged the order impugned dated 3rd April, 2008 and 31st July, 2008 passed by the Ld. Civil Court (Senior Division) at Sealdah in Title Suit No. 118 of 1998.

The brief facts of the case are as follows:-

a) That the predecessor-in-interest of the present petitioners filed Title Suit No. 118 of 1998 as plaintiff before the Ld. Civil Court (Senior Division) at Sealdah for partition and permanent injunction restraining the defendants from dispossessing the plaintiff from her lawful possession over the suit property.

b) That the subject matter of the suit is a thika property situated at premises no.15/4/50, 5/H/5 and B/5/H/6/1, formerly being premises no. 15, Bibi Bagan Lane. The said suit property is more particularly described in Schedules A to C of the plaint.

c) After the demise of her mother, one Ziana Bibi who was the full owner of the suit property, the predecessor-in-interest of the present petitioners, demanded her 1/7th share in Schedule A to Schedule C properties, including her share of the accounts. The defendants having failed to take any steps to partition the suit properties and render accounts, the plaintiff/ predecessor-in-interest of the present petitioners filed the suit.

d) That the defendants/present Opposite Parties resisted the suit by filing written statement. The defence taken by the defendants/Opposite Parties in the said written statement is that the suit property stood mutually partitioned at the intervention of the legal panchayat. Such partition took place as per the provisions of Mohammedan Law. The parties are enjoying their respective shares of the suit property on the basis of such amicable partition and collecting rents from their respective tenants.

e) In connection with the said suit the petitioners filed an application before the Ld. Trial court for acceptance of xerox copy of original registered sale deed dated 10th January, 1947. It was contended on behalf of the petitioners that the Opposite Parties are withholding the original documents of the Schedule A to C suit properties. It was also contended on behalf of the petitioners that in the absence of the original documents pertaining to Schedules A to C suit properties, it will be difficult for the plaintiffs/petitioners to establish their case in the instant suit.

With particular reference to the deed dated 10th January, 1947 the petitioners have stated that the certified copy of the original deed could not be obtained by them from the District Registrar, Alipore. Thereafter on two occasions summons were served to the witnesses in the name of the District Registrar, Alipore to send competent persons to produce the relevant columns in connection with the registered sale deed dated 10th January, 1947. However, the relevant volume containing the sale deed could not be produced in Court and no report could be obtained in respect of the same.

Shri Taraknath Halder, Ld. Counsel for the petitioners submits that by the order impugned dated 3rd April, 2008 the Ld. Civil Court (Senior Division) at Sealdah erroneously rejected the prayer of the petitioners for acceptance of xerox copy of the said deed dated 10th January, 1947 into evidence on the ground that the xerox copy of the deed is neither a primary nor a secondary evidence.

Shri Halder points out that the petitioner also filed an application for service of notice upon the OP1 under Order 11 Rule 14 CPC read with Section 66 of the Evidence Act for production of the original deed of sale dated 10th January, 1947.

By the order dated 31st July, 2008 Ld. Civil Court (Senior Division) at Sealdah was pleased to reject the prayer of the petitioners on the ground that the petitioners have failed to satisfy the Court with regard to the possession of the said documents in question by the OP1.

Shri Halder has argued that since the Opposite Parties are withholding the original docume