1. The defendant-petitioner in the suit has challenged the order dated 18/08/2017 passed by the trial court whereby his application moved under Section 65 of the Evidence Act, 1872 for submitting secondary evidence in relation to the two documents for which his earlier application moved under Order 11 Rule 12 CPC was rejected, has also been rejected.

2. Case of the defendant-petitioner is that he was allotted a plot measuring 133.33 square yards by Shri Mahaveer Grah Nirman Sahkari Samiti Ltd. as Plot No.A-21-A. The plaintiff-respondent filed a suit pointing out that a plot measuring 233.33 square yards was allotted to her in 1989 by the said society marked as Plot No.A-21. The measurement and plan of the plot was also submitted. It was the case of the plaintiff-respondent that the defendant-petitioner had broken the boundary wall and had encroached upon her property.

3. In written statement, the defendant-petitioner came out with the submissions, as noted above.

4. During trial, the defendant-petitioner moved an application under Order 11 Rule 12 CPC for demanding original documents from the defendant-respondent No.2-Shri Mahaveer Grah Nirman Sahkari Samiti Ltd. but the same was rejected on the ground that the ex-parte proceedings had already been undertaken against defendant-respondent No.2. The High Court vide order dated 04/12/2017 upheld that order in SB Civil Writ Petition No.7634/2017.

5. In the meanwhile, the present application, which was pending before the trial court, was also rejected and the present writ petition came to filed before this Court on 01/12/2017.

6. Submission of counsel for the defendant-petitioner is that since his application under Order 11 Rule 12 & 14 CPC was rejected and photo-stat copies of the documents had been produced by the defendant-respondent No.2 earlier in terms of the directions given by the trial court, the defendant-petitioner had no other remedy but to move the present application under Section 65 of the Act of 1872 for treating it as a secondary evidence. Learned counsel submits that the trial court has fallen in error in rejecting his application. Counsel has relied on the law laid down by this Court in the case of Shedu & others Vs. Birdha & another: 2002(5) WLC (Raj.) 761 wherein it has been held as under:-

5. It is no doubt true that in normal circumstances a document in original has to be treated as primary evidence in support of which secondary evidence only could have been allowed to be adduced by producing primary evidence but in the special facts & circumstances of a particular case. If the primary evidence is in the nature of any document which could not possibly have been in possession of the plaintiff and the facts further indicate that this document was vital, the burden of leading primary evidence in regard to that this document could not lie on the plaintiff since he could possibly lead only secondary evidence which is the photocopy of the document executed by the defendant. Thus, although there can be no quarrel with the legal proposition that secondary evidence can be led only after primary evidence is led, it cannot be applied to a situation wherein denial to accept photo copy of the relevant document is bound to result into mis- carriage of justice and prejudice the case of a particular party. Therefore, this principle cannot be allowed to be applied mechanically by the court below specially when it was disclosed that it was capable of affecting the specific pleading raised in the plaint.”

7. Counsel for the defendant-petitioner has also relied upon the law laid down by the Supreme Court in the case of Rakesh Mohindra Vs. Anita Beri and others: JT 2015(10) SC 588 wherein it has been held as under:-

17. The pre-conditions for leading secondary evidence are that such original documents could not be produced by the party relied upon such documents in spite of best efforts, unable to produce the same which is beyond their control. The party sought to produ