IMPORTANT POINT
Photocopy of a document is not admissible in evidence until or unless original record of such document is produced or examined.

Dharam Chand Chaudhary, J.—Challenge herein is to an order dated 6.5.2016 passed by learned Rent Controller, Court No. 4, Hamirpur in an application under Section 65 of the Evidence Act registered as CMA( R.P. No. 1 of 2012) No. 125/2016, whereby the permission as sought by the petitioner (hereinafter referred to as the respondent) to prove the lease deed, Annexure P-4 by way of leading secondary evidence has been declined and the application dismissed.

2. The complaint is that learned Rent Controller below has failed to exercise the jurisdiction vested in it in a just and objective manner and erroneously dismissed the application irrespective of the respondent herein (petitioner before learned Rent Controller below) having admitted the signature of the lessor late Amar Singh on this document, the permission as sought to prove the same by way of leading secondary evidence is stated to be wrongly declined. The impugned order, Annexure P-1, as such, is stated to be false and oppressive, hence not legally sustainable.

3. Mr. Tarun K. Sharma, learned counsel representing the petitioner has vehemently argued that the execution of the lease deed by late Amar Singh stands established from the own admission of the petitioner, who allegedly while in the witness box has admitted the signatures of the executant said Shri Amar Singh thereon. Also that original lease deed is not traceable and even Shri Amar Singh, the executant has also died. Therefore, the original or primary evidence of this document, according to Mr. Sharma, cannot be produced.

4. On the other hand, Mr. Ashwani Sharma, learned counsel representing the respondent has vehemently argued that without there being any proof of the execution of the lease deed by deceased Amar Singh in favour of the respondent-tenant, no question of grant of permission to lead secondary evidence does arise. Mr. Sharma, has also emphasized that ingredients of Section 63 and 65 of the Evidence Act are not at all attracted in this case and as such, learned Rent Controller has rightly dismissed the application.

5. On analysing the rival submissions and also the record, it is amply clear that the petitioner has filed a petition for eviction of the respondent from the demised premises. The defence of the respondent, however, is that he is in possession of the demised premises in the capacity of lessee having paid Rs. 1,50,000/- as lease money for a period of 99 years to its owner late Shri Amar Singh. Learned counsel representing the petitioner, however, submits that there is no question of execution of legal and valid lease deed by late Shri Amar Singh because he was only a co-sharer in the demised premises along with petitioner and one Rajinder Jaar. Any how, the lis is not considered on merits or any observations on merits are required to be made. This Court, however, is concerned only with a short question i.e. qua admissibility of the permission sought to prove the photocopy of the lease deed, Annexure P-4 by way of allowing the respondent to produce the secondary evidence.

6. A bare perusal of Section 65 of Indian Evidence Act makes it crystal clear that secondary evidence may be given of the existence, condition, or contents of a document in either of the situations enumerated a to thereunder. As a matter of fact, the case of the petitioner did not fall under either of such situation for the reason that no proof is forthcoming qua existence of original of Annexure P-4. Annexure P-4 is a copy of unregistered document. The condition precedent to grant permission to prove a document by way of allowing to produce secondary evidence is that the said document is in existence and also that the original or primary evidence thereof is either lost, missing or not available. The loss, destruction or misplacement of the document or that the same is/was in possession of either adversary party of the applicant or executant thereof should be proved on record. A photocopy of the document cannot be admi