Mr. K. Kannan, J. (Oral):- The petition is against the rejection of a document tendered as secondary evidence before the trial court. This is a suit for specific performance and the plaintiff wanted to rely on the fact that the plaintiff was present on 03.05.2005 at the Sub Registrar, Barwala at 9 AM and the defendant had not come. The copy of affidavit prepared before the Sub-Registrar and got noted by him with an endorsement with the official seal was sought to be tendered as evidence. It was objected by the respondent on a plea that the document was not referred to in the plaint and the document as secondary evidence cannot be brought. The court has accepted the objection and the plaintiff who could not produce the copy of the document is before this court on revision.

2. In the suit for specific performance, the proof of readiness and willingness is a most crucial issue and if the plaintiff wants to tender evidence and that he was so willing and that he was even present before the Sub-Registrar on the date when he was required to be present, I would take that to be the most crucial evidence. If there is an averment regarding the readiness and willingness, how that readiness is to be proved is invariably a matter of evidence. The fact that the plaintiff did not aver in the plaint that he had the affidavit of his presence noted and marked as very material, for, as I have already said that the proof of readiness and willingness is a matter of evidence. If the document contains an endorsement of the Sub Registrar with his seal, the copy produced with the seal must be received if the plaintiff states that the original was missing.

3. The learned counsel for the respondent relies on a judgment of the Supreme Court in Smt. J. Yashoda Verus Smt. K. Shobha Rani-2007(1) RCR 466 that if the original itself is found to be inadmissible through failure of the party, who files it, to prove it to be valid, the said party shall not be entitled to introduce secondary evidence of its contents. The plaintiff has tendered the affidavit along with the copy of the document said to be relied on by him where he has stated in para 4 of the affidavit as follows:-

“That the original affidavit was misplaced somewhere and could not be found despite best efforts put by the plaintiff.”

If the plaintiff states that the original is missing and he is, therefore, tendering a secondary evidence, then it means that he is attempting to lay a foundation of what is set forth under Section 65(c) of the Evidence Act. Section 65(c) reads as follows:-

“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, produce it in reasonable time.”

Indeed the practice of filing applications to tender to secondary evidence is archaic and sooner this practice is dropped, better it will be for expeditious disposal of trial. This court has examined this archaic practice and has exhorted trial court to come by an approach of allowing the foundation for affording the secondary evidence to be brought through evidence in court that will be subject to crossexamination. This point has been discussed by this court at least in three judgments viz., Atma Nand (deceased) through LR Versus Ram Sarup (deceased) through his LRs, [2012(1) Law Herald (P&H) 621 : 2012(1) Land L.R. 732] : 2012(1) PLR 440; S.P. Arora Versus Satbir Singh, [2010(4) Law Herald (P&H) 3039] : 2010 (5) RCR 530 and Simarpal Singh Versus Hakam Singh, 2009(2) PLR 562. There is no provision anywhere under the Evidence Act or under the Civil Procedure Code that a loss of document must be a matter which must be set forth in the plaint. If a document is lost and the person says that the document was lost and it is not available despite his search, if there is a plea already in the plaint, no further assertion is necessary. If such an aspect of the loss of original is not in the pleadings, I will not take t