Admissibility of secondary evidence under Section 65 of the Evidence Act requires the document to be lost or destroyed, and a bonafide search to be pleaded.

Civil Revision Petition is filed against the order dated 30.06.2006 made in I.A.No.297 of 2006 in O.S.No.65 of 2005 on the file of Addl. District Judge, Fast Track Court No.1, Coimbatore in refusing to mark the xerox copy of the unregistered Lease Deed, dated 07.07.1989, through the plaintiff at the time of his cross-examination.

2. The brief facts leading to the filing of this petition are as follows:

(i) The respondent is the plaintiff in the suit. According to him, one Mrs.P.A.Fathima, wife of the first defendant in the suit, after receiving proper and valid consideration of Rs.1,90,000/- from him, executed a registered Mortgage Deed, dated 23.03.1990 in favour of the plaintiff, in respect of the property at Coimbatore. She agreed to repay the mortgage amount with interest at the rate of 24% per annum and also agreed to redeem the mortgage within three years, failing which the penal interest of 30% would be levied on the mortgage amount.

(ii) The said Fathima failed to repay the amount and that there was exchange of legal notices between her and the plaintiff. Since she expired, her husband, the first defendant and her son, the 2nd defendant in the suit became liable to pay the mortgage amount. Therefore, the plaintiff filed a suit against the legal representatives of the deceased mortgagee for a decree to pay a sum of Rs.10,38,284/- with subsequent interest at the rate of 30% per annum on Rs.1,90,000/- from the date of the suit till the date of realization.

(iii) The defendants filed a written statement and contended that the first defendant/petitioner in the revision petition was a tenant in Door No. 21-C, Oppanakkara Street, Coimbatore and was running a Hotel in the name and style of "Friends Cafe" for several years. Subsequently, during 1989, he was not able to run the Hotel and as a result, he let out his hotel premises to the plaintiff on lease for a period of 5 years on a monthly rent of Rs.14,000/-. The terms and conditions was reduced in writing and a Lease Deed, dated 07.07.1989 was executed. An advance of Rs.2,50,000/- was paid by the plaintiff to the first defendant.

(iv) The plaintiff defaulted in payment of rent to the first defendant and he was also not able to continue the hotel business. Therefore a sum of Rs.60,000/- was deducted towards the payment of monthly rent and the balance of Rs.1,90,000/- was to be paid by the first defendant. At that time, the first defendant was not in a position to repay the said amount. The plaintiff suggested for execution of a Mortgage Deed by the wife of the first defendant as a security for the outstanding advance amount and under such circumstances, the Mortgage Deed was executed. The said document is only a sham and a nominal one and not intended to be acted upon. The balance amount of Rs.1.90,000/- was repaid in instalments, for which the plaintiff had issued receipts. Unfortunately, the receipts were destroyed in the fire due to communal violence in the year 1998 at Coimbatore. There is no privity of contract between the plaintiff and the defendants and no amount is due to the plaintiff. The defendants further contended that the mortgage deed is not supported by any consideration. Hence, they prayed for dismissal of the suit.

3. During the cross-examination of the plaintiff, the 2nd defendant tried to mark certain documents. The plaintiff/respondent denied the existence of the documents, therefore the 2nd defendant filed I.A.No.297 of 2006, contending that the documents mentioned in the petition were mixed up with other documents, due to which, he was unable to produce it along with the written statement. The said documents would reveal the true nature of the case and hence he prayed to grant leave to produce the documents, viz., (1) the xerox copy of the unregistered Lease Deed, dated 07.07.1989 said to have been executed by the first defendant in favour of the plaintiff (2) certified copy of the F.I.R., dated 16.12.1997 and (3) Receipt for a sum of Rs.50,000