IMPORTANT POINT
The court upheld the Trial Court's decision on the admissibility of secondary evidence and the valuation of the suit, emphasizing the burden of proof lies with the petitioner.

ORDER :

(Nupur Bhati, J.)

1. Though the matter has been listed in the "Fresh" category, upon the joint request of the parties, the matter is heard finally, today itself.

2. The writ petition has been filed by the petitioner/defendant no. 1 under Article 226 of the Constitution of India challenging the orders dated 21.02.2014 (Annex.7), 08.10.2014 (Annex.10) and 09.09.2024 (Annex.8) passed by learned Senior Civil Judge No. 2, Jodhpur Metropolitan in Case No. 41/2005.

3. The writ petition has been preferred with the following prayer:

“It is, therefore, most respectfully prayed that this Hon'ble Court may kindly be pleased to allow the writ petition call for the record and

a. By an appropriate writ order and direction the orders dated 8-10-2024 (Annex 10) to the extent of patta admissibility to the extent of patta in question order dt 9-9-2024 Annex 8 and order dated 21-2-2014 Annex 7 passed by the learned trial court respectfully may kindly be declared illegal and be quashed and the application filed by the petitioner under order 13 rule 3 read with 151 CPC may kindly be ordered to be allowed and plaint filed by plaintiff may kindly be ordered to be rejected.

Any other relief to which the petitioner is entitled, may be granted in his favour and writ petition may be allowed with costs.”

4. Briefly stated, the facts of the case are that respondents no.1 to 5/plaintiffs filed a suit (Annex.1) for possession and recovery of mesne profits along with permanent injunction against the petitioner/defendant no.1 for the property known as Godhdo ki Bagechi, which is situated outside Chandpole Gate, near Naiyon ki Bagechi and Rambavdi, along with the photocopy of the patta of the disputed property (Annex.3).

5. Thereafter, the respondents/plaintiffs filed an application (Annex.5) under Section 65 of the Indian Evidence Act, 1872 ('Act of 1872') for adducing the copy of original patta of the disputed property as secondary evidence, which was allowed by the learned Trial Court vide order dated 21.02.2014 (Annex.7). Thereafter, the petitioner/defendant no. 1 filed his written statements, while raising a preliminary objection on the maintainability of the suit (Annex.1) on account of the valuation of the suit, which was rejected by the learned Trial Court vide order dated 09.09.2024 (Annex.8).

6. Subsequently, the petitioner/defendant no. 1 filed an application under Order XIII Rule 3 read with Section 151 of the Code of the Civil Procedure, 1908 ('CPC') for rejection of the inadmissible evidence, which includes the photocopy of the patta of the disputed property, which was exhibited as Exhibit-1 and another exhibit, i.e. Exhibit-6 which is the patta of Purbiyon ki Bagechi, and while stating that it has been marked without the permission of the Court and was not presented by the respondents/plaintiffs at the time of filing the suit and therefore, it is inadmissible. The said application under Order XIII Rule 3 filed by the petitioner/defendant no.1 was partially allowed by the learned Trial Court vide order dated 08.10.2024 (Annex.10), wherein the contention of the petitioner/defendant no.1 that Exhibit-1, copy of the Patta was inadmissible, was rejected. However, the learned Trial Court vide order dated 08.10.2024 (Annex.10) allowed the application filed by the petitioner-defendant no.1 to the extent of denying the respondents/plaintiffs to mark the document as Exhibit-6, i.e. the Patta of the Purbiyon ki Bagechi inasmuch as the same cannot be exhibited without following the due course of law.

7. Thus, aggrieved of the orders dated 21.02.2014 (Annex.7), 09.09.2024 (Annex.8) and 08.10.2024 (Annex.10), passed by the learned Trial Court, the petitioner/defendant no. 1 has preferred this writ petition.

8. Learned counsel for the petitioner/defendant no.1 submits that:

a. Firstly, the learned Trial Court has erred in allowing the application filed by the respondents/plaintiffs under Section 65 of the Act of 1872, vide the order dated 21.02.2014 (Annex.7), inasm