Secondary evidence is admissible when the non-availability of the original document is properly explained.

JUDGMENT :

ALKA SARIN, J.

1. The present revision petition has been filed under Article 227 of the Constitution of India challenging the impugned order dated 18.11.2023 (Annexure P-5) whereby the application filed by the plaintiff-respondent under Section 65 of the Indian Evidence Act, 1872 for permission to lead secondary evidence has been allowed.

2. Brief facts relevant to the present lis are that the plaintiff- respondent filed a suit for recovery of Rs.28,50,000/- alongwith interest. Written statement was filed. During the plaintiff-respondent’s evidence, an application was filed by the plaintiff-respondent for production of secondary evidence on the ground that in a Bail Application arising out of FIR No.256 dated 24.06.2014 registered under Sections 420, 406, 506, 34 of the Indian Penal Code, 1860 at Police Station City Bahadurgarh, which was filed in the Court of Additional Sessions Judge, Jhajjar, the complainant therein had produced the original agreement to sell and the Court after retaining a photocopy of the same had sent it to the Sub-Registrar, Bahadurgarh for initiation of recovery proceedings qua deficient stamp papers as per rules. It was further stated that the Registry Clerk was also summoned from the office of Sub-Registrar, Bahadurgarh, who failed to produce the original agreement to sell despite 6-7 opportunities. It was further stated in the application that deficient stamp papers had also been made good vide the receipt No.63 dated 02.01.2015 amounting to Rs.1,15,000/-. Reply was filed to the said application and vide the impugned order the application was allowed. Hence, the present revision petition.

3. Learned counsel for the petitioner would contend that the Clerk from the office of Sub-Registrar, Bahadurgarh had appeared as PW6 and had stated in his cross-examination that the original agreement dated 15.05.2013 was not entered in the record and, hence, the learned counsel would contend that there was no question of leading secondary evidence as the loss was not proved. It is further the contention of the learned counsel that even the source of the photocopy has not been stated in the application.

4. Per contra, the learned senior counsel appearing on behalf of the plaintiff-respondent has contended that the agreement was deposited with the office of Sub-Registrar, Bahadurgarh for making good the deficient court fees as was directed by the Additional Sessions Judge, Jhajjar vide order dated 11.12.2014 in Bail Application No.743 of 2014. It is further the contention that even the deficient stamp papers were made good vide the receipt No.63 dated 02.01.2015. The learned senior counsel has further pointed out that the said document was deposited by the Sub-Registrar’s office with the SHO Police Station, City Bahadurgarh and as of today the original agreement is neither traceable in the Sub-Registrar’s office, Bahadurgarh nor in the Police Station City Bahadurgarh and, hence, the necessity to lead secondary evidence.

5. I have heard the learned counsel for the parties.

6. In the impugned order dated 18.11.2023, the relevant portion of the order passed by the Additional Sessions Judge, Jhajjar in the Bail Application No.743 of 2014 has been reproduced which reads as under :

“On 09.09.2014 this court has also taken the original Agreement to Sale dated 15.05.2013 from the complainant party and after retaining the photocopy thereof, same was sent to the Sub-Registrar, Bahadurgarh to initiate recovery proceedings of deficient stamp papers as per rules as there was recital in the Agreement to Sale that sale is for a consideration of rupees twenty-seven lacs out of which rupees twenty- six lacs stood paid as earnest money and balance has to be paid before the Sub-Registrar at the time of registration of sale deed.”

7. The order dated 11.12.2014 which has been reproduced in t