MANMOHAN, J: (Oral)

1. Present revision petition has been filed for setting aside orders dated 15th December 1997 and 5th May, 1998, whereby petitioner’s application to lead secondary evidence under Section 65 of Indian Evidence Act, 1872 (hereinafter referred to as ‘IE Act’) was dismissed and petitioner was directed to file original documents.

2. Ms. Nandini Sahni, learned counsel for petitioner contended that Agreement to Sell, Receipts and other documents dated 6th August, 1980 executed by respondent No. 1 in favour of some third party do not mention a word about the Will dated 25th October, 1972 alleged to have been executed by Late Smt. Gurdai Kaur in favour of respondent No. 1. Learned counsel further contended that the said Will has been propounded by respondents only to usurp and grab petitioner’s share to the extent of 110 square yards in suit property bearing No. C-53, Hari Nagar, New Delhi.

3. She further contended that alleged Will is surrounded by suspicious circumstances and it was never produced for a long number of years before any court or public authority.

4. Ms. Sahni stated that respondent No. 3 in his cross-examination had stated that an area of 110 square yards of land was sold by Mr. Mangal Singh, respondent No. 1 herein to Mr. S.S. Sabharwal. Subsequently, petitioner on meeting Mr. Sabharwal had come to know that respondent No. 1 had sold the plot to Mr. Narinder Singh Malhotra, who in turn had sold the plot to many persons. She further stated that property has since changed many hands and person holding original documents cannot be pin-pointed. Ms. Sahni stated that however, petitioner was given by Mr. Narinder Singh Malhotra photostat of Agreement to Sell, Receipts, Will and Power of Attorney’s dated 6th August, 1980, on the basis of which he purchased 110 square yards of land from respondent No 1.

5. Ms. Sahni, submitted that since aforesaid original documents could not be produced in a reasonable time and the person holding the original documents cannot be pin-pointed, original documents should be treated as either destroyed or lost and petitioner should be allowed to lead secondary evidence by virtue of Section 65 IE Act.

6. Ms. Sahni, also submitted that respondents in their reply to petitioner’s application under Order XIII Rule 2 of Code of Civil Procedure, 1908 (hereinafter referred to as ‘CPC’) had admitted the existence and authenticity of alleged Agreement to Sell, Receipts, Power of Attorney’s and Will dated 6th August, 1980. The alleged admission, as contained in respondents’ reply is reproduced hereinbelow:- “7. ……….It is further stated that neither the alleged documents are related to the suit property nor are subject matter of scrutiny in the present suit. Said documents were within the knowledge of the plaintiff and has not been challenged till date. Alleged documents, in any case has attained their finality by afflux of time and the plaintiff cannot, at all, rely upon the alleged documents for any purpose whatsoever. It is stated that the witness of defendant is neither obliged to verify the documents of the property which has nothing to do with the present suit nor the alleged documents have been challenged by the plaintiff till date.

(emphasis supplied)”

7. In this context, Ms. Sahni relied upon the following judgments:-

.(A) Nawab Singh v. Inderjeet Kaur reported in 1999 (4) SCC 413, wherein Hon’ble Supreme Court was pleased to allow an opportunity to produce documents by leading secondary evidence on the ground that case was covered under Clause (a) of Section 65 of IE Act.

.(B) Arulmigu Dhandauthapanj Swamy v. Sthanika Miras and another, reported in AIR 2007 (NOC) 816 (MAD.), wherein Madras High Court was pleased to allow zerox copy of certified copy of an order as permissible documents under Section 65 (a) of the Act.

.(C) DDA v. Ramesh Chander Jain reported in 2003 RLR 87, wherein this Court was pleased to hold that if original was not produced then photo copy was adm

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