Prakash Gupta, J.

By the instant writ petition under Article 227 of the Constitution of India, the plaintiffs-petitioners seek to challenge the order dated 7th December, 2013 passed by learned Addl. District Judge No.11, Jaipur Metropolitan in Civil Suit No.278/2012 whereby the application of the plaintiffs-petitioners filed under section 65 of the Indian Evidence Act for producing secondary evidence was dismissed.

2. The relevant facts in brief are that petitioners-plaintiffs filed a Civil Suit for specific performance of the contract, possession, perpetual injunction and mesne profits against the non-petitioner/defendant with regard to plot No.339, Nirmaan Nagar AB, Ajmer Road, Jaipur on the basis of agreement to sale dated 2.6.2007 which is pending in the trial court.

3. During pendency of the suit the petitioners-plaintiffs filed an application under Section 65 of the Evidence Act to allow them to prove the agreement to sale dated 2.6.2007 by way of leading secondary evidence i.e. by producing Photostat copy of the same. The non-petitioner-defendant resisted the application by filing reply to the same.

4. The learned trial court vide a detailed order dated 7th December, 2013 dismissed the application observing that when the original document itself cannot be admitted in evidence, its Photostat copy cannot be admitted in evidence as secondary evidence.

5. Feeling aggrieved, the plaintiffs-petitioners have filed the present writ petition.

6. Heard learned counsel for the parties.

7. It is argued by the learned counsel for the plaintiffs petitioners Mr. Gaurav Sharma that the learned trial court has seriously erred in not appreciating that in reply to the application the defendant-non-petitioner has come with a case that the original of the agreement to sale is probably not in existence. In such circumstances, the photo copy of the document sought to be produced is important, being the material evidence, the same is relevant for the just disposal of the matter and the probity, effect and importance of the document if admitted as secondary evidence can be considered at the time of final hearing and the question as to probity and effect of the document so admitted can be left open by giving reasonable opportunity to the parties to the suit to lead evidence and to submit respective claim and objection. It is further argued that the learned trial court has failed to appreciate the aspect of the case that the provisions to allow secondary evidence are to provide relief in a case where a party is genuinely unable to produce the original without any fault. It is then argued that the learned trial court has further failed to consider this aspect of the case that objection with regard to admissibility of the document could have been decided only after giving reasonable opportunity to the party to give evidence in support of existence of the document. It is also argued that the learned trial court has seriously misinterpreted and misapplied the case law cited by the parties to the lis. However, learned counsel for the petitioner fairly admitted that the document in question is insufficiently stamped.

8. In support of his arguments, learned counsel for the plaintiffs-petitioners placed reliance on the judgment of the Supreme Court in Nawab Singh v. Inderjit Kaur AIR 1999 SC 1668 and the judgment of the Punjab & Haryana High Court in Swarn Singh & Anr. v. Narinder Kaur & Ors. AIR 2002 P&H 40.

9. On the other hand, it is argued by the learned counsel for the defendant-respondent that in reply to the application, the defendant-respondent has specifically mentioned that no such agreement was executed between the defendant respondent and the plaintiffs-petitioners and the alleged agreement has been prepared by them by forging his signatures. When no such agreement was executed question of availability of such a document does arise and, therefore, the photo copy of the same cannot be allowed to be admitted as secondary evidence. It is also argu