ORDER

02.09.2022 Date :

Heard Mr. S. Sancheti, the learned counsel appearing on behalf of the Petitioner and Mr. A.Das, the learned counsel appearing on behalf of the Respondent No.1.

2. This is an application under Article 227 of the Constitution challenging the order dated 20/5/2017 whereby the Petition filed under Section 65 read with Section 63 of the Indian Evidence Act, 1872 being registered as Petition No. 1908 was rejected.

3. A perusal of the impugned order shows that the said application so filed was to adduce secondary evidence in respect to documents marked as Exhibit 5, 11 and 11(1), 12 and 12(1), 13 and 13 (1), 14 and 14(1) on the ground that the original documents are alongwith the Plaintiff. The Court below rejected the said application on the ground that there was no foundation laid by the Plaintiff for leading secondary evidence of the photocopies of the documents.

4. For appreciating the dispute between the parties herein, it is relevant to take note of that the Petitioner as Plaintiff had instituted a suit being Money Suit No. 271/2014 before the Court of the Civil Judge No. 2, Kamrup(Metro) at Guwahati for realization of Rs.16,37,635/- along with interest @18% per annum. At the time of filing of the said suit the Plaintiff had filed photocopies of various documents. The documents in question for which secondary evidence has been sought for are in relation to the documents at Serial Nos. 8,15,16,17 and 18 which are certificates and challans. It is an admitted fact that the photocopies of the said documents were filed at the time of filing of the suit.

5. At this stage, it may be relevant to refer to paragraph 16 of the plaint which is quoted hereinbelow.

“That the Plaintiff right to ask for the aforesaid due along with interest is the outcome of the fact that the principal defendants returned the mobile batching plaint along with all its accessories on 10.12.2013 along with a certificate stating that the Defendant No. 1 work is over at the site and as such the Defendant No. 1 are returning the machines to the Plaintiff, the said machines were returned without making any payment towards monthly hire charges and payment towards minimum contract months.”

6. A perusal of the above quoted paragraph would show that specifically it was the pleaded case of the Plaintiff that the principal Defendants returned the mobile batching plant alongwith all its accessories alongwith the certificates stating that the Defendant No. 1 work is over at the site and as such the Defendant No. 1 are returning the machines to the Plaintiff on 21/8/2013. To the said statements made in Paragraph 16, the Defendants had replied in Paragraph 28 of the written statement wherein there is only a denial to the effect that anything which is not borne out of the records are not true and correct.

7. Be that as it may, issues were framed and the next date was fixed for filing of the evidence of the Plaintiff. On the date of filing of evidence on affidavit, the Plaintiff alongwith the evidence on affidavit, filed an application under Section 66 of the Indian Evidence Act, 1872 calling for the original Exhibits 5, 11, 11(1), 12, 12(1), 13, 13 (1), 14 and 14(1) from the principal Defendants. It was specifically stated in the said application that the Plaintiff after receiving mobile batching plant on 21/8/2013 received certain documents through email and as such the original of the same is still in the possession of the principal Defendants and as such the application has been filed for calling the original documents from the principal Defendants so as to enable the Plaintiff to exhibit the said documents. Further to that, it has been mentioned that Exhibits 11, 11(1), 12, 12(1), 13, 13(1), 14 and 14(1) are certificates and challans and all these documents were issued at the time of returning of the machines by the principal Defendants taken on hire but the originals of the aforesaid documents were not handed over to the plaintiff but photocopies of the sai