The main legal point established is that under Section 65 of the Indian Evidence Act, the admissibility of secondary evidence, such as a photocopy of a lost document, should be considered to avoid rendering a party remediless.

JUDGMENT

Vinit Kumar Mathur, J. - The present writ petition has been filed against the order dated 21.03.2017 passed by learned Additional District Judge No. 2, Hanumangarh, whereby the application preferred by the petitioner under Section 65 of the Indian Evidence Act, 1872 was rejected.

2. The facts of the present case in short are that the petitioner entered into an agreement to sale with the respondent on 24.04.2014. Since, the respondent failed to honour his commitment as agreed on 24.04.2014, the petitioner preferred a suit for specific performance of the contract. During the pendency of the suit, an application under Section 65 of the Indian Evidence Act, 1872 (hereinafter referred to as the 'Act') was preferred by the petitioner for taking on record the photocopy of the agreement to sale which was executed between the petitioner and the respondent on 24.04.2014. This application for bringing on record photocopy of agreement to sale dated 24.04.2014 was rejected by the learned trial court on the ground that the original document was not properly stamped and, therefore, the photocopy of agreement to sale cannot be placed on record as secondary evidence.

3. Learned counsel for the petitioner submits that the learned trial court committed an error while rejecting the application preferred by the petitioner under Section 65 of the Act. He submitted that the application preferred by the petitioner squarely comes within the ambit of Clause (C) of Section 65 of Indian Evidence Act and, therefore, the learned trial court committed an error while rejecting the application on the ground that the original document was not properly stamped. He submits that even as per Section 49 of Indian Registration Act there is no requirement of the document to be registered as Section 49 carves out an exception of the document such as the document "Agreement to Sale" filed in the suit for specific performance. Learned counsel submits that even after taking on record the photocopy of the original agreement to sale dated 24.04.2014, the learned trial court is free to take the appropriate proceedings for sending the document for impounding, if the law permits. He submits that if this document is not brought on record, then the suit preferred by the petitioner itself will be redundant and the petitioner will be remediless. He, therefore, prays the writ petition may be allowed and order dated 21.03.2017 may be quashed and set aside and the learned trial court may be directed to take the photocopy of the agreement to sale dated 24.04.2014 on record.

4. Per contra, the learned counsel for the respondent while supporting the judgment dated 21.03.2017 passed by the learned trial court submits that no infirmity has been committed by the trial court while rejecting the application preferred by the petitioner as the original document was not sufficiently stamped and, therefore the lacuna of non-filing of the required stamped duty cannot be fulfilled by the photocopy of the document which is being filed on record. He submits that the deficiency which has been incurred is beyond repair and, therefore no interference is warranted by this court in the order dated 21.03.2017 passed by learned trial court. In support of his contention, he has relied upon the judgments of this court reported in 2008 (1) DNJ (Raj.) 217 Bhanwarlal v. the District Judge, Sirohi and 2008 (2) DNJ (Raj.) 1057 Kunnaram v. Civil Judge Parbatsar & Ors.

5. I have considered the submissions made at the bar and have gone through the relevant record of the case including the impugned order dated 21.03.2017.

6. The undisputed facts in the case are that the petitioner entered into an agreement to sale with the respondent on 24.04.2014 and since, the respondent failed to complete his commitment, the suit for specific performance of contract was filed by the petitioner before the learned trial court against the respondent. During the pendency of the suit, the original document of agreement to sale date