S.S. BYAS, J.—This is a plaintiffs revision against an order of the Addl. District Judge, Baran dated 4. 8. 1984 by which the defendants application under Section 65 of the Evidence Act was allowed and he was permitted to adduce secondary evidence to prove a mortgage.

2. Stated in short, the relevant facts are that the plaintiff instituted a suit for specific performance of an agreement of sale pertaining to Khasra No. 123 comprising an area of 16.3 bighas. It was alleged that on 24. 5. 1980 the defendant entered into agreement with him to sell his aforesaid agriculture land to the plaintiff for a sum of Rs. 17,000/-. A sum of Rs. 15,201/- was paid by the plaintiff to the defendant in cash on that every day and the remaining amount of Rs. 1,799/. was agreed to be paid at the time of the registration of the sale deed. The defendant did not turn up for execution of the sale deed. The plaintiff, therefore, filed the suit for the specific performance of the agreement of sale in the court of the Addl. District Judge, Baran. The suit was resisted by the defendant. He denied to have made any agreement of sale in favour of the plaintiff. He came out altogether with another story and alleged that he had mortgaged Khasra No, 123 with the plaintiff in samvat year 2031-32 for a sum of Rs. 14,500/-and delivered its possession on the same day to the plaintiff. It was further averred that he (defendant) had executed the mortgage deed in the Bahi of the plaintiff. The mortgage was to be redeemed on the expiry of 5 years. On the expiry of 5 years, the defendant approached the plaintiff to relieve Khasra No. 123 from the mortgage and deliver its possession back to him. The attempt proved abortive. He then submitted an application in the court of the Assistant Collector to recover possession over the aforesaid field. In order to defeat that suit pending in the court of the Assistant Collector, the plaintiff has invented and fabricated the false story of the agreement of sale. The trial court framed the necessary issues. The plaintiff adduced the evidence and his evidence was completed. The case was then fixed for the defendants evidence. The defendant submitted an application in the trial court on 17. 2. 84 for issuing notice to the plaintiff to produce the mortgage deed alleged to have been scribed and written in his Bahi. The plaintiff denied the existence of any such document in his Bahi and categorically stated that no such document was ever scribed, written or executed by the defendant in his favour. The defendant there after submitted an application on 16.4.1984 in the trial court praying permission to lead secondary evidence to prove the mortgage deed alleged to have been written in the plaintiffs Bahi. The plaintiff in his reply denied the existence of any such document in his Bahi. He also raised objections that since the alleged mortgage deed was not scribed or written on the stamp paper of requisite value, no secondary evidence could be permitted to be addued to prove it in view of the provisions of the Stamp Act and the Registration Act. The ttial court heard the parties and by the impugned 0rder, allowed the defendants application as indicated at the very outset. Aggriaeved, the plaintiff has come up in revision.

3. Despite service of notice on the defendant, nobody appeared on his behalf. As such the revision was heard exparte against him. I have heard Mr. R. R. L. Gupta learned counsel for the petitioner and perused the impugned order.

4. It was strenuously contended by Mr. Gupta that the court below has acted with material illegality in permitting the defendant to lead secondary evidence in proof of the alleged mortgage deed. The court below has not determined the existence of the alleged mortgage deed. The mortgage deed even according to the averments of the defendant was scribed and written in a Bahi. The document was thus unstamped and unregistered. When the original docu-ment is executed on a paper without stamps of the requisit

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