The main legal point established in the judgment is the admissibility of secondary evidence under Section 66 of the Indian Evidence Act in cases where the existence of a document is denied by the opposing party.

JUDGMENT :

Biswanath Rath, J.

This Civil Misc. Petition involves a challenge to the order dated 26.6.2014 passed by the Civil Judge (Sr.Divn.), Paralakhemundi in C.S. No.93/2011 appearing at Annexure-4.

2. Assailing the impugned order, Sri Das, learned counsel for the petitioner referring to the pleadings in paragraph-2 and paragraph-3 of the written statement submitted that the claim of the petitioner on the basis of a mortgage deed having been denied in the written statement further questioning the existence of such document by the defendants, it is claimed that the plaintiff had no other option than to introduce the secondary evidence by introducing the Xerox copy of the mortgage deed available with her. Further referring to the provision contained in Sections 65 and 66 of the Indian Evidence Act, 1872, Sri Das, learned counsel for the petitioner claimed that for the clear denial of the defendants, there was no question to take resort to the procedure made in Section 66 of the Indian Evidence Act and this aspect having been wrongly appreciated the Civil Judge has passed the wrong impugned order, which needs to be interfered with and set aside. Referring to a decision of this Court in Chandra Sekhar Pati and another vrs. Ahalya Devi & others reported in AIR 1974 Orissa 199, Sri Das further contended that in similar situation, this Court in paragraph-7 thereof has categorically observed that for the clear denial by the defendant on existence of the particular document, there was no question of calling for the documents from the defendants. Sri Das thus claimed that the above decision has a direct bearing on the case at hand. It is under the circumstance, Sri Das, learned counsel for the petitioner prayed for interference with the impugned order and setting aside the same.

3. Sri Mishra, learned counsel for the opposite parties referring to the averments made in the plaint and the denial of the defendants in paragraph-3 submitted that for the availability of the pleadings of the respective parties, the mortgage deed involving the suit taken help of in the suit is supposed to be available with the plaintiff and further in the event the mortgage deed was not available with the plaintiff, then procedure in leading secondary evidence should have been followed by at least making an application to the trial court for allowing him to have the scope of secondary evidence. It is under the above premises, learned counsel for the opposite parties prayed for dismissal of the Civil Misc. Petition for having no infirmity in the impugned order.

4. Considering the rival contentions of the parties, this Court finds, the plaint averments in paragraph-2 of C.S. No.93/2011 read as follows :-

“2.The defendants approached the plaintiff for leasing out the suit house to them for their living and also for their business in the year 2004. The plaintiff and her husband agreed to mortgage the suit house to the defendants and accordingly a possessory mortgage was executed by the plaintiff in favour of defendant No.1on 9.9.2004 and received an amount of Rs.1,50,000/-(rupees one lakh and fifty thousand) only from the defendants on the terms and conditions that no interest to be paid on the amount advanced and no rent need be paid by the defendants for the suit house and the plaintiff delivered possession of the suit house to the defendants on 9.9.2004. The period of the mortgage is two years and eleven months from the date of execution of the mortgage. After expiry of the period, the mortgager i.e. the plaintiff would redeem the mortgage and on redemption, the defendant would deliver possession of the suit house to the plaintiff. The plaintiff tendered the amount of Rs.1,50,000/-just before the expiry of the mortgage, but the defendants requested the plaintiff to extend the period of mortgage and paid an extra amount of Rs.1,30,000/-in addition to the amount already paid on 9.9.2004 and at the request of the defendants, the plaintiff extended the period of mortg