ORDER

1. Aggrieved by the order dated 1.11.2023 passed by 24th District Judge, Commercial Court, Jabalpur in Civil Suit No.36-B of 2023, dismissing the application preferred by the defendants-petitioners under section 65 of the Evidence Act, 1872, present petition under Article 227 of the Constitution has been filed.

2. It is the case of the petitioners-defendants that the respondent-plaintiff has filed a Civil Suit claiming a decree for recovery of a sum of Rs.6,99,28,943.30 along with interest @ 24% per annum. The written statement was filed. Thereafter, the petitioners filed an application under Order 11 rule 12 and 14 of CPC for production and discovery of the documents i.e. original unregistered agreement dated 14.8.2018 which was in possession of the respondent. Response to the application was filed denying to produce the said document and the application was disposed off vide order dated 6.10.2023.

3. It is argued that the respondent has not denied the execution of the said document, therefore, an application under section 65 of the Evidence Act, 1872 was filed before the trial Court asking for a prayer to consider the aforesaid document as secondary evidence. The photocopy of the document has been produced before the trial Court as well as before this Court. The learned trial Court has rejected the application on the ground that the same being an unregistered and unstamped document does not fall under the definition of an agreement, therefore, has rejected the application. It is argued that even an unregistered document having relevance to the case can always be treated as a relevant document for collateral purposes. The aforesaid aspect has not been considered by the trial Court. Whether a document is genuine or is having any relevance to the case in hand is a matter of trial. The trial Court cannot give a declaration at the very inception stage declaring the document to be an invalid document. It is argued that the matter is at the stage of recording of plaintiff's evidence. Some affidavits under Order 18 rule 4 of CPC have been filed. All the proceedings are still pending consideration and yet to take place. Therefore, no prejudice would be caused to the plaintiff, if the application is allowed and the said document is called for.

4. Per contra, the counsel appearing for the respondent-plaintiff has supported the impugned order on the ground that it is only the terms and conditions which were settled between the parties and subsequently an agreement has been entered into between the parties and got registered, therefore, previous terms and conditions which had been settled by the parties on a plain paper cannot constitute to be an agreement and cannot be treated as evidence in the matter. He has prayed for dismissal of the petition.

5. Heard learned counsels for the parties and perused the record.

6. The only question which crops up for consideration is whether an unregistered document which is the terms and conditions settled between the parties can be placed before the trial Court for consideration as a secondary evidence for collateral purposes. The law with respect to secondary evidence is settled by the Hon'ble Supreme Court in a large number of cases including in K.B. Saha & Sons (P) Ltd. v. Development Consultant Ltd. reported in (2008) 8 SCC 564 wherein while considering the proviso of section 49(c) of the Registration Act, the Hon'ble Supreme Court has observed that non-registration of document required to be registered is inadmissible in evidence, however it can be used as an evidence for collateral transaction/purpose.

7. From the aforesaid proposition, it is apparently clear that the document which is having some relevance and not in possession of the party claiming the production of the document can always be placed and treated to be secondary evidence for collateral purposes. The trial Court at the very initial stage cannot give a declaration regarding the document to be invalid or void. Whether the doc