Secondary evidence is admissible under Section 65 of the Evidence Act when original documents are not available, and a plaint disclosing a cause of action must be read in its entirety.

ORDER :

[Civil Writ Petition No. 2222/2024]

1. Though the matters were listed in the ‘Fresh’ Category, however, on joint request of the counsel for the parties, the matters are heard today itself.

2. The Writ Petition has been filed under Articles 226 and 227 of the Constitution of India with the following prayers:-

“That the petitioner most respectfully humbly prayed that

A. It is therefore most respectfully prayed that this writ petition may kindly be allowed:-

B. By an appropriate writ, order or direction order may kindly issued and quashed the impugned order dated 09.01.2024 (Annexure-8) passed by learned Commercial Court No.2 Jodhpur in Commercial Suit No.21/2023 (NCV No.80/2019) (M/s Hira Ram Hansa Ram vs. M/s Triveni Brokers & others), may kindly be set aside.

C. By an appropriate writ, order or direction order may kindly issue and the application (Annexure-6) under Section 65 of the EVIDENCE ACT may kindly be rejected.

D. Any other appropriate writ, order or direction, which this Hon'ble Court may deem it just and proper in the facts and circumstances of the case, may kindly be issued.

E. Costs of this writ petition may kindly be may kindly be awarded in favour of the petitioner”

3. Brief facts of the case are that the plaintiff/respondent firm filed a commercial suit for recovering Rs.17,86,774/-(Annexure-1) which included the amount supposed to be deposited by the petitioners against the supply of goods, on 02.11.2017, i.e. Rs. 12,27,977/-along with the interest of Rs. 4,90,019/-from the said date. An FIR was also registered at No. 59/2018 at Police Station, Sumerpur, District Pali, against the petitioner/defendant firm under Section 420 , 408, 120-B of the INDIAN PENAL CODE , 1860 and subsequently the chargesheet was filed on 04.11.2018.

4. After the service of notice, the petitioner/defendant firm filed a reply (Annexure-2) raising preliminary objections with regard to maintainability of the suit. Furthermore, the petitioner/defendant firm firm filed an application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘CPC’) on account of non-disclosure of the ‘cause of action’ in the plaint.

5. The Learned Commercial Court, vide order dated 11.08.2021 dismissed the application of the petitioner/defendant, against which the petitioner/defendant firm preferred a S.B.C.W.P No. 16350/2022 titled as Triveni Brokers v. Hiraram and Ors. Which is pending consideration before this Court.

6. During the course of trial, the plaintiff/respondent firm filed an application (Annexure-3) under Order XI Rule 12 and 14 of CPC for taking on record the document/receipts. The petitioner/defendant firm filed a reply (Annexure-4) to the said application, raising an objection with respect to the applicability of Order XI of CPC to the proceedings under Commercial courts Act , 2015.

7. Learned Commercial Court vide order dated 28.08.2023 (Annexure-5) dismissed the application filed by the plaintiff/respondent firm. Subsequently, the plaintiff/respondent firm filed an application (Annexure-6) under Section 65 of the Indian EVIDENCE ACT , 1872 for taking on record the document/receipts as secondary evidence, to which the petitioner/ defendant firm filed a reply (Annexure-7).

8. Thereafter, the learned Commercial Court vide order dated 09.01.2024 (Annexure-8) allowed the application filed by the plaintiff/respondent.

9. Thus, being aggrieved of the order dated 09.01.2024 (Annexure-8), the