IMPORTANT POINT
Photostat copy of a document can be allowed to be produced only in absence of original document.

Paramjeet Singh, J.—Instant civil revision has been filed under Article 227 of the Constitution of India for setting aside the order dated 29.11.2011 passed by learned Civil Judge (Jr. Divn.), Karnal whereby application moved by petitioner-plaintiff under Sections 63 and 65 of the Indian Evidence Act, 1872 (in short “the Act”) seeking permission to prove photostat copy of agreement dated 16.05.1994 allegedly executed by Brij Lal, predecessors in-interest of respondents in favour of petitioner-plaintiff, by way of secondary evidence, has been dismissed.

2. Shorn of unnecessary details, the facts relevant for disposal of the present petition are to the effect that the petitioner-plaintiff filed suit for possession by way of specific performance of contract dated 16.05.1994 with consequential relief of permanent injunction. During the pendency of suit, the petitioner-plaintiff filed application for leading secondary evidence to prove photostat copy of alleged agreement dated 16.05.1994 allegedly executed by Brij Lal, predecessor-in-interest of the respondents in favour of the petitioner. The petitioner got instituted the suit by Mr. Rajinder Singh Rana, who has expired during the pendency of trial. The petitioner handed over the original agreement to his counsel, however, when the original agreement was asked from the office of counsel, it was informed that original is not in the brief of the counsel. The said application was contested by the respondents alleging that Brij Lal had never executed any agreement in favour of the petitioner and agreement as alleged by the petitioner is bogus one. On 30.05.2006, a panchayat was convened in which compromise was effected and reduced into writing and compromise was also effected at Police Station Kunjpura on 14.09.2007. It was specifically averred that there were other documents with the previous counsel, but the same have not been lost and loss of a particular document by the counsel raises suspicion about the story as alleged by the petitioner. Vide impugned order dated 29.11.2011, the trial Court after considering the pleadings dismissed the said application. Hence, this revision petition.

3. I have heard learned counsel for the parties and perused the record.

4. Learned counsel for the petitioner has vehemently contended that the petitioner is entitled to prove the agreement to sell dated 16.05.1994 by leading secondary evidence, as original agreement has been lost. Factum with regard to the loss of original agreement need not be strictly proved but a foundation has to be laid which has been laid down in the application. The learned counsel has further contended that original agreement dated 16.05.1994 was handed over by the petitioner to his counsel, who has now expired and the same is not found in brief, therefore, its loss is apparently proved. However, the trial Court vide impugned order dated 29.11.2011 has dismissed the application in mechanical manner and without affording adequate opportunity .

5. Per contra, learned counsel for the respondents has vehemently contended that no agreement was executed by Brij Lal in favour of the petitioner, therefore, the question of it being lost by the previous counsel does not arise. The learned counsel has further contended that clerk of deceased counsel appeared as PW2 and he did not depose anything regarding loss of alleged agreement in original and he only proved the legal notice Ex.P2. The learned counsel has further contended that at the time of filing the suit, the alleged agreement in original was not produced despite the fact that the petitioner had to produce the qualitative evidence in support of his claim. The learned counsel has further contended that the petitioner is withholding the alleged original agreement and has failed to prove the existence and loss of the same. As such, photostat copy of the original agreement cannot be allowed to be produced as secondary evidence unless its authenticity is proved.

6. I have co