JUDGMENT AND ORDER :

Pushpendra Singh Bhati, J.

The petitioners have preferred this writ petition under Article 226 & 227 of the Constitution of India, claiming the following relief’s :

"(i) By an appropriate writ, order or direction, the order dated 25.01.2018 (Annexure-8) may kindly be quashed and set aside;

(ii) By an appropriate writ, order or direction, the application filed by the respondents/ plaintiffs under Section 65 of the Indian Evidence Act, 1972 may kindly be dismissed in the Civil Original Suit No. 68/2016 (Kuldeep Kour and Anr. Vs. Jai Ram & Anr) pending in the court of Special Judge, NDPS Cases, District Sriganganagar;

(iii) Any other relief which this Hon'ble Court deems appropriate and genuine may kindly be granted in favour of the petitioners;

(iv) Cost of the writ petition may kindly be awarded to the petitioners;"

2. Precisely the facts of the case are that the respondent No.2 and 3 filed a suit for specific performance for an agreement dated 25.03.2006 regarding the agricultural land measuring 11 bighas and 17 biswas in Murabba No. 54 in Village 2 C Chhoti, Tehsil and District Sriganganagar. The father of the petitioners was said to be the sole owner of the disputed land. The petitioners have preferred this petition challenging the impugned order whereby, the application filed under Order 11 Rule 12 & 14 CPC for production of agreement dated 09.10.2006 from the possession of the petitioners which was dismissed by the learned court below but the respondents were permitted to file a photostat copy of the sale agreement dated 09.10.2006 under Section 65 of the Indian Evidence Act, 1972 (hereinafter referred to as the Act of 1972).

3. Learned counsel for the petitioner has shown from the record that a notice was given by the respondents on 10.10.2006 and therefore, as per the petitioner, if there was such an agreement then agreement dated 09.10.2006 should have found mention in the notice dated 10.10.2006.

4. It is contended by learned counsel for the petitioners that the rejection of the application under Order 11 Rule 12 & 14 CPC does not entitle the respondent to have the agreement on record in the shape of photostat copy under Section 65 of the Act of 1972.

5. It is also contended by learned counsel for the petitioners that once the existence of the agreement was not proved therefore, it was not open for the respondents to produce the document under Section 65 of the Act of 1972.

6. Learned counsel for the petitioners has relied upon the judgment in the matter of Hukmi Chand Mosun Vs. Kushal Chand Duggad, (2017) AIR (Rajasthan) 215. The relevant portion of the judgment reads as under :

"8. It is trite that under the Evidence Act, 1872 facts have to be proved by primary evidence and secondary evidence is only an exception to the rule. For the exception aforesaid to apply, foundational facts have to be supplied to the trial court's satisfaction and preconditions for leading secondary evidence fulfilled. The Apex Court in the case of M. Chandra v. M. Thangamuthu and Ors, (2010) 9 SCC 712 has held that secondary evidence cannot be allowed only for reason of permission merely being sought. Permission can only be granted on the Court being satisfied that absence of primary evidence is not attributable to the applicant himself. In the case of H. Siddiqui (dead) by L.Rs. v. A. Ramalingam, (2011) 4 SCC 240 the Apex Court reiterated that were original documents are not produced without as plausible reason and factual foundation for laying secondary evidence not established it is not permissible for the court to allow a party to adduce secondary evidence. In para 12 it was held as under :

12. Provisions of Section 65 of the Act, 1872 provide for permitting the parties to adduce secondary evidence. However, such a course is subject to a large number of limitations. In a case where original documents are not produced at any time, nor, any factual foundation has been led for giving secondary evidence, it is not permissible for the

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