1. By this petition under Article 227 of the Constitution of India, the petitioner is challenging that part of the impugned order dated 27.6.2012 by which the defendant’s (petitioner’s) application under section 65 of the Indian Evidence Act, 1872 (in short “Evidence Act”) has been rejected.

2. The facts necessary for disposal of this petition lie in a narrow compass. Suffice it to say that a suit for eviction on the relationship of landlord and tenant has been filed by plaintiff-respondent against defendant-petitioner. The defendant-petitioner submitted written statement and also filed counter claim praying a decree of mandatory injunction directing plaintiff to execute a registered sale-deed in her favour; perpetual injunction restraining the plaintiff from interfering with the possession of the defendant and also from transferring, encumbering and creating any third party right; declaration that suit property be charged in respect of consideration money paid by the defendant in advance; and any other reliefs which the Court deems fit. According to pleadings of counter claim earlier the parties were having very cordial and sweet relationship as a result of which they entered into an agreement of sale in regard to the disputed house on 28.9.2010 and it was agreed between the parties that said house will be sold for a consideration of Rs.8.70 lacs. In advance a sum of Rs.30,000/- was paid and a sum of Rs.1.50 lacs has been deposited in the account at State Bank of India Milaunigaj, Gopal Bagh Branch, Jabalpur of the plaintiff’s husband Chhatradhari Gupta. Thus, a total sum of Rs.1.80 lacs has already been paid to the plaintiff. A receipt of accepting Rs.1.80 lacs has also been issued by the plaintiff in presence of witnesses.

3. Further it has been pleaded in the counter claim that on 5.12.2008 the plaintiff along with her son-in-law visited to the house of defendant and asked her husband to prepare the document regarding transfer between the parties. It was also demonstrated by the plaintiff that some other persons being interested to purchase the disputed house are pressurizing her to sell the same in their favour, therefore, written document in original be handed over to her in order to show those persons that plaintiff has already obtained the substantial money from petitioner and under this pretext the original (primary evidence) document of receipt was handed over by the defendant-petitioner to plaintiff-respondent and a photocopy thereof was kept by her.

4. An application under section 65 of the Evidence Act was submitted by the defendant-petitioner in the trial Court praying that the photocopy of the receipt may be taken on record as secondary evidence. However, this prayer was vigorously opposed by the plaintiff by filing reply completely denying the fact that ever any such receipt was issued and the same was handed over to her.

5. Learned trial Court marked the aforesaid application of section 65 of I.A. No.2 and by impugned order has rejected the same. In this manner this petition under Article 227 of the Constitution of India has been filed.

6. In his usual vehemence learned counsel for the petitioner Shri Amitab Gupta by inviting my attention to section 63 and also section 65(a) and (b) of the Evidence Act has contended that since the original receipt was obtained by plaintiff’s husband under the false pretext that the same is required by plaintiff to show to several other persons who are pressurizing the plaintiff to sell the suit property to them that the plaintiff has obtained a substantial amount from the defendant and thus she cannot sell the suit property to them. Thus, the original document is in power and possession of the plaintiff and therefore if the application under section 65 of the Evidence Act in terms of clauses (a) and (b) of the said provision has been filed, the learned trial Court ought to have admitted the photocopy of the said receipt in secondary evidence. Learned counsel has also invited m