Rajiv Sahai Endlaw, J.

1. This petition under Article 227 of the Constitution of India has been preferred by the plaintiff in the suit from which this petition arises and against the order dated 28th May, 2008 dismissing the application of the petitioner under Section 65 of the Evidence Act. This court while issuing notice of this petition had stayed the further proceedings in the suit and the said order continues till date.

2. The petitioner/plaintiff has sued for specific performance of an agreement for sale of immovable property and for recovery of damages. The petitioner/plaintiff filed an application under Section 65 of the Indian Evidence Act on the plea that the original agreement to sell had been handed over to the counsel earlier engaged by the petitioner/plaintiff; that the said counsel expired and a new counsel was engaged; that the new counsel upon inspection of the court record found that the original agreement to sell was not on record; that the original agreement had been handed over to the earlier counsel for filing in the court and upon the demise of the earlier advocate the petitioner was not aware of the whereabouts of the said documents. The petitioner/plaintiff in the circumstances, sought leave of the court to prove the copy of the original agreement by way of secondary evidence.

3. The trial court has inter alia held that the plaintiff has miserably failed to show that the original agreement existed at all and that the reasons stated in the application do not inspire confidence. The application was accordingly dismissed.

4. I have in Prem Chandra Jain v. Sri Ram, MANU/DE/2860/2009 held that there is no need for filing an application under Section 65 of the Evidence Act for seeking permission to lead secondary evidence. The documents can be proved either by primary or by secondary evidence. Of course for proof of documents by secondary evidence the conditions laid down in Section 65 have to be satisfied. However, the said conditions can be satisfied only during the evidence and not by way of making an application. In the present case also the trial court has erred in without giving an opportunity to the petitioner to enter the witness box or lead any evidence, holding that the factual pleas of the petitioner of the existence of the original agreement to sell and of the same having been lost in the manner alleged are without any basis. All that is a matter of evidence and ought to have been left to be decided in evidence rather than being decided by way of an application.

5. The senior counsel for the respondent/defendant has however relied upon Ashok Kumar Garg v. Anil Kumar Gupta CM (M) No. 1320/2004 decided on 28th January, 2009 in which another Single Judge of this Court dismissed a petition under Article 227 of the Constitution of India preferred to this Court against the order of the Trial Court dismissing the application under Section 65 of the Evidence Act. It was held that secondary evidence is admissible when the party offering evidence of the contents of a document cannot, for any reason not arising from his own default or neglect, produce the original document; if the party himself neglects or makes default in taking necessary steps to cause the production of the original, then he is not entitled to give secondary evidence. Though in that case also application was considered without recording evidence but I must state that the question as to whether such application lies or not did not fall for adjudication. The said judgment therefore cannot be said to be a judgment on the aspect as to how the admissibility of secondary evidence is to be adjudicated and whether it is to be done on an application or by recording evidence.

6. The senior counsel for the respondent also relied upon Banarsi Dass v. Om Parkash, AIR 2005 Punjab & Haryana 200, Baljit Kaur v. Mohinder Kaur, Volume CVII (1994-2) Punjab Law Reporter 488 where also applications under Section 65 of the Evidence Act were considered. However, agai