IMPORTANT POINT
The main legal point established is the interpretation and application of Section 65 and Section 66 of the Indian Evidence Act 1872 in allowing secondary evidence and the circumstances under which notice to produce is not required.

JUDGMENT :

1. Though the matter was listed in ‘Orders’ Category, at the joint request of both the parties, the matter was heard today finally.

2. This writ petition has been filed under Articles 226 and 227 of the Constitution of India, with the following prayers: -

“It is, therefore, most respectfully prayed that the writ petition filed by the petitioner may kindly be allowed with cost and by an appropriate order, writ or direction, impugned order dated 7.7.2023 (Annexure-5), may kindly be quashed and set aside, consequence thereof, the application under section 65 of the Act may kindly be ordered to reject with all consequential directions.

Any other appropriate writ, order or direction, which is considered just and proper in the facts and circumstances of the case, may kindly be passed in favour of the petitioner.”

3. Brief facts of the case are that the respondent/plaintiff had filed for a suit of specific performance of the agreement dated 28.10.2014 for a shop ad-measuring 10x10 feet for Rs. 25,00,000 and the respondent/plaintiff had already paid Rs. 8,00,000 in cash as earnest money, on the same day and the agreement was attested and executed. As per the agreement dated 28.10.2014, the date for execution of transfer deed was fixed on 28.10.2015, however, by virtue of acknowledgement dated 10.08.2015, the date of execution of registration of sale deed was agreed upto 31.03.2016. Also, it was alleged that the possession was agreed to be delivered on the date of execution on or before 31.03.2016.

4. The respondent/plaintiff filed a plaint (Annexure-1) before the learned Trial Court that since the agreement was not performed till 31.03.2016, the respondent/plaintiff is entitled to get the mesne profit arising out of the shop in question. In response to the said plaint, preferred by the respondent/plaintiff before the learned Trial Court, the petitioner has denied the very existence of the alleged agreement, acknowledgement, as well as the payment of consideration/earnest money along with the mode of execution and attestation of agreement dated 28.10.2014. Since the petitioner as well as the respondent/plaintiff were residing in the same area and were well-known to each other, they had agreed to start a joint business for various food products, the petitioner had agreed to deliver the possession of the shop in question.

5. Thereafter, the respondent/plaintiff had filed rejoinder and subsequently the issues were framed by the learned Trial Court on 05.11.2016 and the matter was fixed for plaintiff’s evidence. After a period of three years, the respondent/plaintiff filed affidavit in chief on 09.01.2020 which was sent for compounding on account of being insufficiently stamped and thereafter, it came on record on 03.03.2020. The respondent/plaintiff filed two applications under Order VII Rule 14 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘CPC’) on 07.07.2021, and both the applications were allowed vide order dated 11.07.2021, after which the matter was fixed for plaintiff’s evidence.

6. On 31.08.2022, the cross-examination of PW-1 could not be completed for the want of original documents, thereafter, on 27.01.2023, the respondent/plaintiff preferred an application under Section 65 of the Indian Evidence Act, 1872 (hereinafter referred to as the ‘Act of 1872’) for bringing on record the legal notice, which was sent by the respondent/plaintiff on 13.06.2018 (Annexure-3) through his counsel, Sh. Virendra Mehta for the performance of the agreement dated 28.10.2014. Alongwith the said application, the respondent/plaintiff filed a photostat copies of notice and postal receipt, which were the copies of their respective originals obtained from Sh. Virendra Mehta, previously appearing for the plaintiff. In the application, the respondent/plaintiff alleged that despite efforts being made the notice and postal receipts could not be procured from the earlier counsel, Sh. Virendra Mehta.

7. The learned Trial Court after heari