The Court has the discretion to allow secondary evidence to be produced, even if it was not produced at the proper time, if a satisfactory explanation for the delay is provided.

JUDGMENT :

Dinesh Mehta, J.

1. The present writ petition is directed against the order dated 27.03.2019, passed by the Commercial Court, Jodhpur (hereinafter referred to as "the Trial Court") whereby an application filed by the respondent-plaintiff under Section 65 of the Evidence Act has been treated to be an application under Order VII Rule 14 of the Code of Civil Procedure and allowed.

2. The facts, narrated briefly are that the respondent-plaintiff instituted a suit for recovery of money on 16.03.2016, the present petitioner-defendant filed written statement and opposed the averments made in the plaint; the issues in the matter were framed on 25.03.2017; whereafter, at the time of the evidence, plaintiff (respondent herein) filed an application dated 06.02.2019 under Section 65 of the Evidence Act. It was inter-alia asserted in the application that the plaintiff could not produce duplicate medical reports while submitting rejoinder, as the same were obtained belatedly.

3. The present petitioner-defendant filed a reply to the plaintiff's application under Section 65 of the Evidence Act and opposed grant of permission to lead secondary evidence on the basis of such documents.

4. During the course of hearing of the application, the learned Trial Court observed that the application under Section 65 of the Evidence Act, cannot be allowed, until and unless, the documents are first taken on record. It proceeded to treat the said application as an application under Order VII Rule 14 of the Code of Civil Procedure and allowed the same. The documents were thus taken on record.

5. Mr. Abhinav Jain, learned counsel for the petitioner, challenging the order dated 27.03.2019, passed by the Trial Court, contended that the Court below has erred, firstly in treating the application under Section 65 of the Evidence Act to be an application under Order VII Rule 14(3) of the Code and then ignoring the other provisions of the Code and order XX Rule 17 of the General Rules (Civil and Criminal), 2018.

6. In support of his submissions aforesaid, learned counsel relied upon a coordinate Bench decision dated 02.09.2016, passed in S.B. Civil Writ Petition No. 5000/2008, Smt. Monika vs. Surendra Bhansali and Others and contended that the order impugned, passed by the Court below is not only contrary to the law laid down by this Court but also in defiance of the provisions incorporated under the Civil Procedure Code 1908 and General Rules (Civil and Criminal) 2018.

7. I have heard learned counsel for the petitioner and perused the material available on record.

8. It is true that the plaintiff (respondent herein) had filed an application captioned it to be an application under Section 65 of the Evidence Act, but in essence, the same was an application under Order VII Rule 14 of the Code of Civil Procedure as well, which is evident from perusal of the following observations:

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vr% ÁkFkZuk i= ÁLrqr dj fuosnu gS fd ÁkFkhZ dk ÁkFkZuk i= Lohdkj dj ejht rUukjkr dh fjiksVZ fjdkMZ ij fy, tkdj f}rh; lk{; gsrq] btktr Ánku djsaA**

9. In considered opinion of this Court, the Court below has done substantial justice and taken the documents on record, in view of the explanation with respect to the delay in filing the same.

10. As far as judgment of this Court in case of Smt. Monika (supra) is concerned, the same is of little help to the petitioner, inasmuch as, this Court has held that the applicant-plaintiff should furnish satisfactory explanation of delay in submitting documents. In considered opinion of this Court, applicant-respondent has furnished reasonable explanation for the delay in producing the duplicate copy of the medical reports.

11. Looking to the fact-situation and the stage of the suit, wherein the evidence of the plaintiff has just