JUDGMENT :

PRAYER : Appeal filed under Order XXXVI Rule 9 of Madras High Court Original Side Rules R/W. Clause 15 of Letters Patent Act, against the Order dated 06.01.2023 in C.S.No.290 of 2004.

The appellant/1st defendant has preferred this appeal against the order dated 06.01.2023 passed in C.S.No.290 of 2004.

2. Heard both sides and the relevant records are perused.

3. It appears that PW1 has been examined in chief and Exs.P1 to P20 have been marked and the case was adjourned to 20.10.2022 and meanwhile, the memo in question was filed for the hearing on 14.11.2022. Based on the said memo, the following order was passed by the learned Single Judge of this Courton 06.01.2023: The below said order is sought to be assailed by the 1stdefendant.

''That the documents produced before this Court be and are hereby directed to be received in evidence subject to proof, relevancy and admissibility.

2. That the plaintiff herein be and is hereby required to explain why he could not produce the primary documents.

3. That the C.S.No.290 of 2004 be and is hereby referred back to the learned Master-I, for resumption of trial on 07.02.2023.''

4. The learned counsel for the appellant/1st defendant would vehemently contend that the 1st respondent has not laid any foundation for non production of primary evidence either in the plaint, proof affidavit or any of their pleadings and the trial in the suit had already commenced before the learned Additional Master-II, where the primary documents have been marked. It is further contended that instead of filing an application to let in secondary evidence, a memo was filed and his arguments were fortified by the judgment rendered by the Hon'ble Supreme Court in J.Yashoda v. K.Shobha Rani reported in (2007) 5 SCC 730 and Jagmail Singh and Another v. Karamjit Singh and Others reported in (2020) 5 SCC 178, wherein, it has been held that secondary evidence can be let in only with regard to existence, condition or contents of a document when the original cannot be produced under any of the provisions of Section 65 of the Indian Evidence Act, 1872, inter alia that the original of the documents for which secondary evidence is sought to be let in are in possession or power against whom the document is sought to be produced or any person out of the reach or not subject to the process of the court or that the person fails to produce the original after notice under Section 66 of the Act being issued or that the original has been destroyed or lost etc.

5. It was also brought to the notice of this Court by the learned counsel for the appellant/1st defendant that as per law laid down in Dhanpat v. Sheo Ram (deceased) through Lrs and others (2021 (1) Law Weekly 228) that there is no requirement to file an application under Section 65 before the secondary evidence is let in, if the party has already laid a foundation for letting in the secondary evidence either in the plaint or in evidence.

6. The learned counsel for the appellant has also circulated the Order passed by the Hon'ble Supreme Court of India in Suo Moto Writ (Crl) No.(s).1/2017 in RE: To issue certain guidelines regarding inadequacies and deficiencies in Criminal Trials vs. The State of Andhra Pradesh & Ors., wherein the Hon'ble Supreme Court has given certain directions to the Criminal Courts.

7. The learned counsel for the appellant had also taken pains to explain the observations made by the Hon'ble Supreme Court in J.Yashoda v. K.Shobha Rani reported in (2007) 5 SCC 730, wherein the Hon'ble Supreme Court has held that for adducing secondary evidence it is necessary for the party to prove existence and execution of the original documents.

8. Per contra, the learned counsel for the 1st respondent/plaintiff would contend that when the documents are sought to be filed by the party to the proceedings, an order to the effect as mentioned supra will be passed. Only at the time of recording the evidence, the trial Judge after hearing the objections if any, would either cho