ORDER :

(Nupur Bhati, J.)

With the joint consent of learned counsel for the parties, the matter is heard finally today itself.

2. The present writ petition has been filed under Article 226 and 227 of the Constitution of India with the following prayers:-

"i) By appropriate writ, order or direction, the impugned order passed by the Additional Civil Judge and Metropolitan Magistrate No.10, Jodhpur Metropolitan, Jodhpur dated 22.10.2019 (Annex.5) may kindly be declared illegal and be quashed and set aside.

ii) By appropriate writ, order or direction the application filed by the plaintiff under section 65 of the Indian EVIDENCE ACT for treating the agreement to sale dated 30.09.1991 and patta issued in the year 1995 as admissible in evidence may kindly be dismissed with costs.

iii) Any other appropriate order or direction which this Hon'ble Court may deem fit just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner.

iv) Costs of the writ petition may kindly be awarded to the petitioner.

3. Brief facts of the case are that the respondent-plaintiff preferred a suit for permanent injunction seeking direction that the construction raised by the petitioner was in violation of the condition mentioned in sale deed dated 30.09.1991 which was registered on 31.12.1991 and the same may be demolished and the disputed strip of land measuring 3x62 i.e. 3 feet x 62 feet be left vacant.

4. A reply was submitted by the petitioner to the said civil suit and issues were framed by the learned trial Court on 16.12.2016. During pendency of the said suit, an application was moved by the respondent-plaintiff under section 65 of the Indian EVIDENCE ACT , 1872 (hereinafter referred as The Act of 1872) for permitting the plaintiff to treat the certified copy of the sale deed dated 30.09.1991 as admissible evidence. The petitioner did not file reply to the said application and the application came to be decided by the Court below vide order dated 22.10.2019 whereby the application was allowed. Being aggrieved of the impugned order dated 22.10.2019, the present writ petition has been filed.

5. Learned senior counsel appearing for the petitioner submits that the finding given by the court below while deciding the application filed under Section 65 of the Act of 1872 permitting the plaintiff-respondent to place certified photocopy of the sale deed dated 30.09.1991 as admissible evidence is not sustainable as Section 65 read with Section 66 of the Act of 1872 clearly reflects that unless the party fulfils the procedure as prescribed under Section 66 of the Act of 1872, the application cannot be allowed to treat the said document as admissible evidence under Section 65 of the Act of 1872.

6. Learned senior counsel also submits that in the said application it has not been mentioned that who was having the possession of the original sale/Patta and a bare perusal of Section 65 reveals that secondary evidence relating to the documents can be given, if the original appears to be in possession or power of the person against whom the document is sought to be proved of any person who is out of reach of said document. Learned senior counsel further submits that there was no such application filed by plaintiff-respondent to treat the document under Section 77 of The Act of 1872. He also submits that in any case, even the certified copy of the patta is not a public document and therefore, the procedure under Section 66 is mandatory and has not been adhered and in the instant case, the procedure has not been followed and thus, the finding given by the learned Court below while permitting the document as admissible in sec