ORDER :

1. The instant petition was listed under caption ‘Held up Matters’ as by way of interim order passed by this Court on 03.03.2020, the proceedings of Civil Suit giving rise to the instant petition were stayed.

2. The petitioners have filed this petition under Article 227 of the Constitution of India questioning the validity of order dated 14.02.2020 (Annexure P/1) whereby the trial Court in a pending civil suit had rejected the application filed under Section 65 of the Evidence Act, 1872.

3. As per the facts of the case, the plaintiffs (respondents herein) filed a suit for partition against the defendants (petitioners herein). The plaintiffs and defendants are the members of same family whose original ancestor was Madari Lodhi and after his death, the ancestral property sought to be partitioned by filing a suit wherein it was claimed that the property also included the property which was purchased from the income of the joint family.

4. As per the plaintiffs, the property should be partitioned and every plaintiff is entitled to get 1/7th share of property of late Madari Lodhi who left behind four sons and three daughters. A copy of the plaint is available on record as Annexure P/4 containing the family tree of late Madari Lodhi.

5. The defendants no. 1 to 4 and 6 to 8 filed their written-statement, opposing the stand taken by the plaintiffs and stated that the property had already been partitioned and a memorandum in this regard had also been prepared before the Panchas on 22.07.1993 which was signed by the parties especially the father of plaintiffs no. 1 to 5 and out of 38 acres, 10 acres of land was given to late Mangal (father of plaintiffs no. 1 to 5) and remaining land came in the share of defendants no. 1 to 3. The defendants no. 4 and 6 to 8 in their written-statement by way of counter claim had claimed that if the suit of the plaintiffs is allowed then plaintiffs and defendants would become entitled to get 1/8th share in the property. The defendants no. 4 and 6 to 8 also added some more properties claiming the same to be suit properties.

6. The petitioners/defendants in the pending suit had filed an application under Section 65 of the Evidence Act along with an application under Order 8 Rule 3 of CPC seeking permission to take photocopy of the Memorandum in evidence and also sought permission to lead secondary evidence thereof. It is mentioned that the original Memorandum was handed over by late Madari to Shri M.K. Shrivastava, Advocate engaged for filing the suit, but Shri Shrivastava unfortunately died in the year 1994-95 and late Madari also died on 08.04.1994 and as such, the said document i.e. original Panchnama dated 22.07.1993 was destroyed by the legal heirs of Shri M.K. Shrivastava, Advocate.

7. The plaintiff no. 1 who has been later on transposed as defendant no. 9 had filed an affidavit under Order 18 Rule 4 CPC admitting that partition between the parties had already been recorded in the form of Panchnama or Memorandum dated 22.07.1993.

8. The Court below vide impugned order dated 14.02.2020 (Annexure P/1) rejected the application holding that the Memorandum is inadmissible in evidence until and unless it is compared with the original document; hence this petition.

9. Learned counsel for the petitioners submits that the Court below did not appreciate the legal position that photocopy of a Panchnama can be used in evidence for leading the secondary evidence as per requirement of Section 65 of the Evidence Act. He submits that since the original document was lost as destroyed, therefore, it is difficult to compare the photocopy with the original document but without considering the admission made by PW-1 (Brijlal) in his affidavit filed under Order 18 Rule 4 of CPC, rejection of the application is not proper. He further submits that Section 65 (c) of the Evidence Act clearly provides that secondary evidence of the contents of the documents are admissible when the original has been destroyed or lost or when the