( 1 ) IN invocation of the extraordinary Jurisdiction of this Court under Art. 227 of the Constitution of India the petitioners have called in question the penetrability of the order passed in Civil Suit No. 27-A/04 by the learned Civil Judge-II, Jabalpur whereby he has rejected the application preferred under section 65 of the Evidence Act by the petitioners,

( 2 ) THE facts in a nutshell are that the respondents Initiated a civil action seeking ejectment of the petitioners from the suit house on the grounds arrears of rent, subletting and bona fide need for non-residential purpose under Section 12 (a) (b) of the m. P. Accommodation Control Act. It is the case of the respondents before the Court below that they are the landlord of building no. 662 situated at Kotwali ward Jabalpur and the petitioner No. 1 is the tenant of the building as per agreement dated 16-3-1976 executed between the respondent No. 1 and the petitioner No. 1. The accommodation that was let out was one room and basement and was rented for Rs. 100/- per month. As putforth, the petitioner failed to pay rent despite so many demands hence, the claim was filed from 1-7-2001 till the date of filing of the suit at the rate of Rs. 100/- per month. Eviction was also claimed on the ground of subtenancy alleging that the petitioner No. 1 had let out the suit accommodation to his son, the petitioner No. 2 hence, that has resulted as a ground for eviction. In addition, it was pleaded that the suit accommodation was required by the respondents for keeping the goods of their shops as they have no other accommodation for keeping the same.

( 3 ) THE petitioners filed their written statement disputing the allegations put forth in the plaint and stated that the respondent no. 1 has let out one room in the ground floor and the basement at the rate of Rs. 100/- per month. An agreement was executed in writing on 14-3-1976 as per annexure P-4. After some time the respondents because of need requested the petitioner No. 1 for vacating the same and regard being had to the good relationship the petitioner vacated the ground floor and accordingly a new agreement was made which is known as 'tabdeeli Kirayanama'. It is set forth that the respondents were in need of big room and small room of ground floor and the same were vacated by the petitioner and now the petitioner is in possession of the basement only. Considering the aforesaid changed accommodation rent was reduced, and settled at Rs. 50/- per month. The petitioners denied the arrears of rent and the factum of sub-letting and prayed for dismissal of the suit.

( 4 ) WHEN the matter was pending before the Court below the petitioner filed an application dated 9-7-2004 for production of the original deed dated 16-3-1976 and changed rent deed dated 19-11-1986. The respondents filed their reply to the said application stating that they are in possession of the agreement dated 16-3-1976 and prepared to file the same but they are unable to file the changed deed as they are not in possession of it.

( 5 ) IN view of the aforesaid situation the petitioner filed an application under Section 65 of the Evidence Act to produce secondary evidence as the respondents refused to produce the changed rent deed. A copy of the said application has been brought on record as Annexure P-8. The respondents replied to the said application putting forth a stance that they are not in possession of the said deed. The learned trial Judge considering the material brought on record rejected the application preferred under section 65 of the Evidence Act by the petitioners on the ground that there is no material to hold that the original is in possession of the respondents.

( 6 ) QUESTIONING the said order it is put forth in the petition when the defendants had taken a categorical stand and that the original changed deed was with the respondents the learned trial Judge should not have rejected the application of the petitioners preferred under Section 65 of the Ev

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