1.By invoking the jurisdiction of this Court under Article 227 of the Constitution, the petitioner-Gwalior Development Authority (GDA) has assailed the order dated 17.12.2012. By the said order, the application preferred by the petitioner/defendant No. 1 under section 65 of the Evidence Act is rejected by the Court below.

2. Brief facts necessary for adjudication of this matter are as under:-

The respondent No. 1- plaintiff filed a civil suit for declaration and permanent injunction on the ground that Survery No. 788 area 0.108 hectare situated in village Shankarpur, Tahsil and District Gwalior, is purchased by him through a registered sale deed dated 1.7.2009 from respondent No. 2- Housing Society. Mutation has been done in revenue record. The land in question is an agricultural land. It is the case of the plaintiff that on 26.6.09 a Sub-Engineer of GDA threatened him for dispossession on the ground that the land in question is acquired by GDA by way of agreement dated 12.6.1998. The stand of GDA before the Court below is that the land in question is a part of valuable notified scheme of Transport Nagar and in view of section 53 of Nagar Tatha Gram Nivesh Adhiniyam, 1973 ( for brevity, the ‘Adhiniyam’), any sale subsequently done by respondent No. 2 is void ab initio and a nullity in the eyes of law.

It is further stated by GDA that possession of the land in question was taken over by them on 2.12.1998 from respondent No. 2 Society. The scheme needs to be implemented as per section 56 of the Adhiniyam.

Learned trial Court framed four issues after completion of pleadings. The plaintiff, thereafter submitted his affidavit under Order 18 Rule 4 CPC. The GDA cross-examined the plaintiff/respondent No. 1 and its witnesses. The matter was then fixed for defendant evidence. An affidavit under Order 18 Rule 4 CPC with relevant documents was filed by GDA. The documents include agreement dated 12.6.1998. possession receipt, order dated 2.12.1998, allotment order dated 22.8.2000, final layout plan of the scheme in question and copy of FIR dated 21.8.2000. The documents filed along with aforesaid affidavit by GDA are photocopies. Accordingly, GDA preferred an application under section 65 of the Evidence Act (Annexure P4) with a prayer that the said photocopies may be taken in evidence as secondary evidence. The singular reason assigned for seeking such permission was that the original documents and files relating to present case have been stolen by some person from the office of GDA. A FIR was registered for this purpose and investigation is going on. Since the original documents have lost due to theft committed by some person and a criminal case is registered in this regard, the photocopies of the said documents can be treated as secondary evidence. The respondent No. 1/plaintiff submitted his reply and prayed for rejection of said application.

The Court below by impugned order dated 17.12.2012 rejected the said application preferred under section 65 of the Evidence Act. The Court below opined that section 63 of the Evidence Act provides the categories of secondary evidence. In absence of original, secondary evidence is permissible under certain circumstances as enumerated in section 63 r/w section 65 of Evidence Act. The Court below opined that the documents filed by GDA do not fall within the five categories mentioned in section 63 of the Evidence Act and said documents could not be compared with the original and, therefore, the said documents cannot be treated as secondary evidence. The Court below opined that the photocopies can be compared with the original and then only it gathers relevance and genuinenss. In absence thereof, the said documents cannot be treated as secondary evidence.

3. Criticizing the said order, Shri Raghvendra Dixit, learned counsel for the GDA, submits that a careful reading of section 63 (a) (illustrations) r/w section 65 (c) makes it clear that the documents in question can be treated as secondary evidence.