Manmohan, J.

1. The present petition has been filed under Article 227 of the Constitution of India for setting aside the orders dated 5th March, 2004, 31st May, 2004 and 20th September, 2004 passed by the Additional District Judge, Delhi. By virtue of the said orders, the petitioner/defendants application for leading secondary evidence under Section 65 of the Indian Evidence Act, 1872 (hereinafter referred to as the Act) was dismissed and subsequently, the defendants evidence was closed and the matter was listed for final arguments.

2. The trial court had rejected the petitioners application under Section 65 of the Act on the ground that the petitioner/defendant deliberately did not file the originals of the documents in the suit filed by the petitioner despite being given several opportunities. The trial court was further of the view that the petitioners case was not covered under Clause(c) of Section 65 of the Act. The relevant portion of the impugned order dated 15th March, 2004 is reproduced hereinbelow

for ready reference:

4. An application for secondary evidence can be allowed only if it satisfies the terms of Section 65 of Evidence Act. In the present case, the application and grounds do not satisfy terms of Section 65 of Evidence Act. The documents which are sought to be proved has been categorically denied by the alleged executor. The defendant who claimed to be in possession of originals deliberately did not file the originals in the other Court taking several excuses. Once it was stated documents have been lost, then it was stated that documents have been found but have been mortgaged to raise loan and third time again the excuse was loss of documents. The case of defendant is also not covered under Clause 65(c) of Indian Evidence Act because the defendant had deliberately not produced the original documents despite giving opportunities and has been making excuses for not producing documents. The case of the defendant is not covered under any other provision of Section 65 of Indian Evidence Act. I, therefore, dismiss the application.

3. Mr. Rawal, learned senior counsel for the petitioner submitted that the petitioner/defendants case was that the respondent/plaintiff had sold the flat in question to the petitioner/defendant. He stated that to effectuate the sale, the respondent/plaintiff had executed the following documents:

1. Agreement to sell dated 9.4.1995

2. General Power of Attorney dated 8.5.1995.

3. Indemnity Bond dated 8.5.1995.

4. Special Power of Attorney dated 8.5.1995.

5. Affidavit dated 8.5.1995.

6. Receipt dated 8.5.1995.

7. Will dated 8.5.1995.

.4. Mr. Rawal submitted that Clause (c) of Section 65 of the Act was clearly attracted in the present case as the originals of the documents referred to hereinabove were lost when the petitioner had brought them to court for filing. He stated that the petitioner was a very unlucky person as in the initial suit filed by the petitioner against the respondent only photocopies of the above mentioned seven documents were filed, as even at that time, the said documents were lost and were not available to the petitioner. Subsequently, the said seven documents were traced out but they had to be mortgaged to a builder M/s Khurana and Associates and even after the mortgage was redeemed, the said seven documents were once again lost before they could be filed in Court.

5. Mr. Rawal further submitted that the question whether the above mentioned seven documents are false and fabricated as alleged by the respondent/plaintiff could be decided only at the time of evidence and it would be highly illegal and irregular if the petitioner was not given an opportunity to lead secondary evidence.

6. Mr. Vikram Nandrajog, learned counsel for the respondent/plaintiff justified the impugned order by pointing out that the respondent/plaintiff had never sold the flat in question to the petitioner/defendant and, therefore, the said seven documents were never executed. He stated t