1. By way of the instant writ petition filed under Article 227 of the Constitution of India, the petitioners have challenged the order dated 26.08.2016 passed by the learned Senior Civil Judge, Srikaranpur, District Sriganganagar, whereby application dated 16.05.2015 filed by the petitioners-plaintiffs under Section 65 of the Evidence Act, seeking permission to lead secondary evidence in respect of an agreement to sell dated 26.12.1991, has been rejected.

2. The facts giving rise to the present writ petition are that the plaintiffs filed a suit for specific performance of an agreement, said to have been executed by the defendant in petitioners’ favour on 26.12.1991, in relation to 6 Bighas 5 Biswa land. While instituting the suit, the plaintiff stated in para No.10 of the plaint that the original agreement dated 26.12.1991 had been lost ten days prior to the institution of the suit, which is being reproduced for the sake of ready reference:-

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3. The defendant filed a written statement, while denying the very existence of the said agreement to sell dated 26.12.1991 and asserting that the same is forged and spurious. During the pendency of the suit proceedings before the plaintiff’s evidence could commence, the petitioners-plaintiffs submitted an application dated 16.05.2015, seeking leave to lead secondary evidence with respect to the agreement dated 26.12.1991 as provided under Section 65 of the Evidence Act, 1872. The petitioners’ stance in the application was in conformity with the plaint and they reiterated that the original agreement to sell dated 26.12.1991 had been lost/stolen and there is no possibility of it being discovered. In response to the said application, filed by the plaintiffs, the defendant filed a reply and denied the averments and prayer made in the application.

4. The said application dated 26.05.2015 filed by the plaintiffs came to be rejected by the learned Trial Court vide its order dated 26.08.2016, apparently being influenced by the fact that the plaintiffs had not lodged any FIR about the theft of the agreement to sell. Learned Trial Court has further observed in the order impugned that the plaintiffs have not filed any affidavit in support of the application indicating that the document had been stolen. Assailing the order impugned, Mr. G.J. Gupta, learned counsel for the petitioners submitted that learned Trial Court has seriously erred in rejecting petitioners’ application, seeking leave to produce secondary evidence of the contentious agreement to sell. He argued that the petitioners’ assertion cannot be brushed aside simply because no FIR was lodged by the petitioners in relation to theft of the document and because no affidavit in support thereof has been filed. Attacking the finding recorded by the learned Trial Court, Mr. Gupta contended that there is no requirement in law, to lodge FIR, if a document has been stolen. With respect to the requirement of filing affidavit in support of the application, the argument of learned counsel has been that neither provisions of Section 65 of the Evidence Act nor any other law requires filing of such an affidavit. However, he maintained that the plaintiff had in unequivocal terms asserted in his plaint itself that the original document in question had been stolen ten days prior to the filing of the suit and that the plaint itself was supported by the petitioners’ affidavit. He urged that even if there is a requirement of filing th