ORDER

1. This writ petition under Article 227 of the Constitution of India is directed against the order date.22.1.2013 (Annexure P/1), by which the trial Court has allowed the application filed by the plaintiff under section 65 (c) of the Evidence Act for taking the secondary evidence on record.

2. The facts necessary for disposal of the instant writ petition, in nutshell, are to the effect that earlier similar application was filed for taking on record same secondary evidence i.e. certified copy of document, but was rejected on 25.8.2012 with the observation that the plaintiff may apply for certified copy of the document from the office of SDO as the alleged document was said to be an order passed by SDO Basoda on 27.3.1985. It further appears that second application has been filed before the Court below on 29.10.2012 with averment that an application was filed in the office of Collector, the appellate authority. An endorsement has been made by the copying section on the overleaf portion of the application that the original copy of the order i.e. 27.3.1985 is misplaced and not traceable. One certified copy of that order was issued on 1.4.1985.

3. Trial Court by the impugned order has allowed the application under section 65 (c) of the Evidence Act.

4. Shri D.D.Bansal, learned counsel for the petitioner/defendant contends that the trial Court has committed a grave illegality and jurisdictional error while allowing the application for the reason that for want of specific endorsement about the details of the person in whose favour certified copy of the order date.27.3.1985 was issued on 1.4.1985, the photocopy of the document could not have been taken on record as secondary evidence in view of section 63 sub-section (3), illustration (a). For ready reference, section 63 sub-section (3), illustration (a) is quoted below :-

“63. Secondary evidence.- Secondary evidence means and includes -

(1) -- --

(2) -- --

(3) copies made from or compared with the original; Illustration.

(a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original.”

Therefore, the document could not have been treated to be a secondary evidence to be taken on record. Further elaborating his submission, learned counsel submits that from a careful reading of the afore-quoted provision and illustration, it is vividly clear that unless it is proved that a thing photographed was the original, photograph of an original cannot be accepted as secondary evidence of its contents. In the instant case, unless the authenticity of the certified copy allegedly issued on 1.4.1985 of the document in question and the factum of non-existence of certified copy is established with conclusive proof of possession and availability thereof, the alleged photocopy placed on record could not have been treated to be secondary evidence of the contents of the certified copy (original copy). Hence, the document could not be said to be secondary evidence and consequently, the same could not have been accepted in evidence under section 65 (c) of the Evidence Act. Learned counsel relies upon the judgment of this Court in the case of Gopal Sharma v. Smt. Savitri Devi Ojha reported in 1994 (1) MPWN 192 and Tawar Singh v. Ranjit Singh reported in 2001 (I) MPWN 54.

5. Per contra, Shri R.K.Upadhyay, learned counsel for the L.Rs. of respondent No.1 relying on the judgment of Hon'ble Supreme Court in the case of S.Saktivel (dead) by L.Rs. v. M.Venugopal Pillai and others reported in AIR 2000 SC 2633 submits that even if the certified copy is not available, the photo copy thereof can be accepted as secondary evidence.

6. This Court has carefully considered the submissions advanced and perused the judgments cited by either party. Before adverting to rival contentions, it is expedient to observe that unless the document sought to be produced satisfies the requirement of secondary evidence a