The admissibility of documents must be established before allowing secondary evidence, as per the provisions of the Evidence Act and relevant case law.

ORDER

Prakash Gupta, J. - This writ petition under Article 227 of the Constitution of India has been filed by the petitioner-plaintiff (for short, 'the plaintiff) against the order dated 13.8.2019 passed by the Trial Court in Civil Suit No. 28/20213, whereby the application filed by the respondents-defendant No.3 (for short, 'the defendant) under Order 8 Rule 1 (3) readwith Section 151 CPC and Section 65 of the Evidence Act have been allowed and the documents submitted by the defendant as secondary evidence have been taken on record.

2. Facts of the case are that the plaintiff filed a suit seeking declaration for cancellation of lease deed. The defendants filed their written statement. Necessary issues were framed. The defendant no.3 filed two applications : (i) under Section 8 Rule 1(3) readwith Section 151 CPC for taking the documents on record; and (ii) under Section 65 of the Evidence Act for producing secondary evidence in respect of agreement dated 24.5.1989, order dated 21.5.2003 and agreement dated 15.2.2013. The plaintiff filed reply of both the applications. The Trial Court vide its order dated 13.8.2019 allowed both the applications of the defendant subject to payment of cost of Rs. 2000/- and took the documents on record. Hence, this writ petition.

3. It is submitted by learned counsel for the plaintiff that without deciding the admissibility of the documents, application under Section 65 of the Evidence Act has been allowed by the trial court. He further submits that the trial court has failed to consider the objections raised in reply to the applications and thus, committed material illegality. On this count, the impugned order is liable to be quashed and set-aside.

4. On the other hand, learned counsel for the defendants submit that after due consideration of the material on record, the impugned order has been passed. They defended the impugned order and submit that the impugned order is just and proper, therefore, no interference therewith is required by this Court.

5. Heard. Considered.

6. A Bench of three Hon'ble Judges of the Supreme Court in the case of Hariom Agrawal Versus Prakash Chand Malviya reported in (2007) 8 SCC 514 considering the admissibility of the document which was not properly stamped in evidence held that instrument not properly stamped, was not admissible as evidence and that a photocopy of original instrument cannot be admitted in evidence.

7. I am of the view that without first deciding the admissibility of the document in question, secondary evidence cannot be produced.

8. For the aforesaid reasons, the writ petition deserves to be allowed and the same is allowed. Accordingly, the impugned order dated 13.8.2019 passed by the Trial Court is quashed and set-aside and the Trial Court is directed to first decide the plaintiff's application filed under Section 17 and 49 the Act of 1908 and the Act of 1998 and then decide the defendant's applications under Order 8 Rule 1 (3) readwith Section 151 CPC and Section 65 of the Evidence Act afresh, in accordance with law.

9. Consequent upon the disposal of the writ petition, stay application also stands disposed of accordingly.