JUDGMENT :

(Nupur Bhati, J.)

This writ petition under Article 226 & 227 of the Constitution of India has been filed by the petitioner-plaintiff aggrieved of the order dated 06.09.2018 passed by learned Senior Civil Judge No.6, Jodhpur Metro in Civil Original Case No.28/15 (Smt. Mathura Devi v. Jassa Ram), whereby the application filed by the respondent-defendant under Section 65 of EVIDENCE ACT , 1872 for taking the secondary evidence relating to documents, was allowed.

2. The facts in brief are that the petitioner-plaintiff filed a suit against the respondent-defendant stating therein that a plot was allotted in the name of her father-in-law Shri Bhika Ram and a patta was also issued by the Gram Panchayat Luni in the year 1960. Shri Bhika Ram expired in the year 1974 and the land was vested in favour of husband of the petitioner-plaintiff, herself and her son. After the death of her husband, the property is in her possession. It is stated in the plaint that in the southern side of her plot, there is a plot of Naina Ram and Poona Ram and the respondent-defendant Jassa Ram is residing and since Jassa Ram wanted to grab the property of the petitioner-plaintiff, therefore, the petitioner-plaintiff filed a suit for injunction along with T.I. Application, which came to be decided in favour of the petitioner-plaintiff and status quo was ordered to be maintained.

3. After service of notice upon the respondent-defendant, he filed written statement and counter claim. The petitioner-plaintiff also filed rejoinder and written-statement to the counter claim. The learned Court below, on the basis of the pleadings of the parties, framed issues and the case was fixed for evidence of petitioner-plaintiff, which was closed in the year 2017 and the matter was fixed for the evidence of respondent-defendant. The matter was thereafter fixed for cross-examination of the respondent-defendant and his witness Naina Ram on 11.05.2018. On 11.05.2018, the respondent-defendant filed an application under Section 65 of the EVIDENCE ACT and prayed for taking on record a copy of the mauka report dated 10.11.1999 by way of secondary evidence. The petitioner-plaintiff filed reply to the application alleging that the original copy of the said document is available with the Tehsildar, Luni and he has not submitted any proof of not having certified copy of the said report, thereby, not complied with the requirement of Section 65 (1) of the EVIDENCE ACT .

4. The learned Court below, after hearing both the parties, allowed the application of the respondent-defendant (Annex.4) vide order dated 06.09.2018 (Annex.6).

5. Thus, being aggrieved of the order dated 06.09.2018 (Annex.6), passed by the learned court below, the petitioner-plaintiff has preferred the present writ petition.

6. Learned counsel for the petitioner-plaintiff submitted that the application of the respondent-defendant was not maintainable under Section 65 of the EVIDENCE ACT for the reason that the respondent has produced photocopy of the lost document i.e. the original mauka report, as the original mauka report dated 10.11.1999 was not available with the Office of Tehsildar, Luni and further the respondent-defendant did not submit any documentary evidence based on which it can be proved that he had applied for certified copy of the mauka report. He further submitted that the Office of Tehsildar, Luni gave a report that the original mauka report dated 10.11.1999 was lost and destroyed, therefore, in the absence of the application submitted