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 i