Mr. Ram Chand Gupta, J.: - The present revision petition has been filed under Article 227 of the Constitution of India for setting aside the impugned order dated 10.05.2010, Annexure P3, passed by learned Additional Civil Judge, Senior Division, Malerkotla, vide which application, dated 24.05.2007, Annexure PI, filed by respondent No.1-plaintiff, seeking permission to lead secondary evidence regarding agreement to sell dated 14.09.2004 and receipt dated 07.11.2004 was allowed and respondent No.1 has been permitted to lead secondary evidence qua the said two documents.

2. I have heard learned counsel for the parties and have gone through the whole record carefully including the impugned order passed by learned trial Court.

3. Facts relevant for the decision of present revision petition are that admittedly an agreement to sell dated 14.09.2004 was executed by present petitioner-defendant in favour of respondent No.1-plaintiff vide which petitioner agreed to sell the land in dispute, to respondent No.1-plaintiff on total consideration of Rs.40,55.000/-. Rs.5 lacs were received as earnest money on 14.09.2004 and another sum of Rs.5 lacs were received by petitioner as earnest money on 07,11.2004. Petitioner on the request of respondent No.1-plaintiff executed sale deed No.1864 dated 30.12.2004 regarding one half of the property in dispute in favour of his father on receipt of Rs.10,20,000/-. However, so far as the remaining half of the total property is concerned, sale deed was not executed as per the agreement. Hence, plea has been taken by respondent No.1-plaintiff that though he was always ready and willing to perform his part of the contract, however, petitioner/­defendant No.1 failed to perform his part of the contract and hence, this suit.

4. Petitioner-defendant No.1 took the plea that agreement to sell dated 14.09.2004 was mutually cancelled, after registration of the sale deed of half share of the property in favour of father of respond0nt No.1-plaintiff.

5. In the present suit itself, it was pleaded by respondent No.1-plaintiff that original agreement and the receipt have been lost by him on 09.01.2005 along with some other documents, which was in his hand hag and regarding the same he also lodged a Rapat No.8 dated 11.01.2005 in Police Station Dehlon and that the suit was filed by him on the basis of Photostat copy of the said agreement to sell, duly attested by Notary. He filed the present application for permission to lead secondary evidence of the original agreement and the receipt in the form of their Photostat copies, duly attested by Notary public, on the plea that the original documents are not in his possession, as the same have been lost. The application was allowed by learned trial Court by observing as under:­-

“8. The Indian Evidence Act permits the leading of secondary evidence under the circumstances enumerated under Section 65. Under Clause (i) of Section 65 of Indian Evidence Act, secondary evidence relating to a document may be given:­-

“When the original has been destroyed or lost, or when the party offering evidence of its contents cannot for any other reason not arising from his own default or neglect, produced in reasonable time.

9. The applicant/plaintiff alleged that the original agreement to sell dated 14.09.2005 and Receipt dated 07.11.2004 have been lost. The applicant has also pleaded this fact specifically in his plaint. The Xerox of the Rapat No.8 dated 11.01.2005 lodged at Police Station, Dehlon coupled with an affidavit dated 11.01.2005, agreement to sell dated 14.09.2004 and Xerox copies of affidavits dated 13.01.2005 and 17.01.2005 already placed on file by the applicant/plaintiff.

10. To prove a document by way of primary or secondary evidence is a rule of evidence. Whether party seeking leave of the Court to lead secondary evidence ultimately succeeds in proving the document or not is a question of fact and depends upon evidence. To grant leave to lead secondary evidence does no