The judgment established the importance of establishing the existence of the original document and the process of obtaining the photocopy as key factors for permitting secondary evidence under the Indian Evidence Act, 1872.

Govind Mathur, J.-This petition for writ is directed against the order dated 01.04.2005 passed by learned Civil Judge (JD), Udaipur City (South) rejecting the application preferred by the plaintiffs under Sections 65 and 66 of the Indian Evidence Act, 1872 (hereinafter referred to as “the Act of 1872”).

2. The factual position required to be noticed is that the plaintiff-petitioner and the proforma respondent (respondents No. 5 and 6) filed a suit for permanent injunction, so as to restrain the defendant-respondents from obstructing the right of the way said to be enjoyed, by a period of more than 50 years. The plaintiff averred in the plaint that to obviate any further dispute between the parties to the suit, including their predecessors, entered into a written agreement on 27.02.1979.

3. The defendants in written statement denied the right of way as claimed by the plaintiff and also denied about writing of agreement dated 27.02.1979. The defendants alleged that the writing dated 27.02.1979 as forged and fabricated document.

4. As the existence of the writing dated 27.02.1979 was denied and the same was not produced by the defendants, the plaintiffs moved an application under Sections 65 and 66 of the Act of 1872 to permit them to give secondary evidence relating to the document dated 27.02.1979. The defendants by way of filing a reply to the application stated that no secondary evidence can be given relating to the document which does not exist. The defendants reiterated the allegations about fabrication of the document and also stated that in the year 1979 the mechanical process of photocopying was not in common use.

5. By the order impugned the trial Court rejected the application by holding that no permission to give secondary evidence can be given as the existence of writing dated 27.02.1979 itself is in dispute. While giving challenge to the order impugned dated 01.04.2005 it is urged by Counsel for the petitioner that the defendants denied existence of document concerned to obviate their liability to produce the same at the time of evidence. The secondary evidence, according to Counsel for the petitioner, could not be denied in present set of facts only for the reason that the defendants denied existence of original document. It is further stated that though the defendants disputed existence of document dated 27.02.1979 but yet it is not proved that the document does not exist, therefore, in view of the provisions of Section 65(a) of the act of 1872 the trial Court should have allowed the plaintiffs to give secondary evidence. To substantiate the contention reliance is placed by learned Counsel for the petitioner upon Single Bench Judgment of this Court in the case of Malkit Singh vs. The Special Court, NDPS Cases, Sri Ganganagar, Rajasthan & Ors., SBCWP No. 6243/2005 decided on 210.2005. A reliance is also placed by learned Counsel for the petitioner upon a Judgment of Honble Supreme Court in the case of Nawab Singh vs. Inderjeet Kaur, reported in AIR 1999 SC 1668.

6. After going through the Judgment s referred above I am of the opinion that the Judgment s, on which reliance is placed by Counsel for the petitioners, are having no application in present controversy. In the case of Nawab Singh (Supra) Honble Apex Court held that the trial Court is not justified in forming opinion that the rent note sought to be produced as secondary evidence was of doubtful veracity without affording the plaintiff an opportunity of adducing secondary evidence. The case before the Apex Court was not of non-existence of original document. In the said case a doubt was created about the original document with the allegation that it was not executed.

7. Learned Single Judge of this Court in the case of Malkit Singh (Supra) while considering the contention that whether the petitioner in that case will be deprived from raising the objection about admissibility of document given in secondary evidence subsequently during the trial of th