JUDGMENT

(Judgment of the Court was made by MOHAMMED SHAFFIQ,J.)

The question that arises for consideration in this appeal revolves around the scope and ambit of Section 65 B of the Evidence Act, 1872 (hereinafter referred to as “Act”).

For the sake of convenience, we shall refer to the parties in terms of their ranking in the suit in CS.No.375 of 2005.

2. Brief Facts:

a) The respondents 1 to 6 herein are the plaintiffs in the suit and they laid the same for specific performance based on an oral agreement for sale of schedule mentioned property owned by the defendants 1 to 5. The appellants herein are the 1st and 3rd defendants in the suit. The Chartered Accountant and the daughter of the 4th defendant were arrayed as the 6th and 7th defendants in the suit and are the 10th and 11th respondents herein.

b) The claim to the schedule mentioned property was made on the basis of an oral agreement. To prove/establish the said oral agreement, the plaintiffs / respondents herein relied on copies of e-mails stated to be exchanged between th th the 6 and 7 defendants which were produced as Plaint documents.

c) During trial, the plaintiffs / respondents had taken out two applications in A.Nos.4184 and 4185 of 2017 for summoning the 6th and 7th defendants with a view to prove the E-mails exchanged between the two, which were relied upon in the plaint. An order dated 20.09.2017 came to be passed in application A.No.4184 of 2017, that trial was directed to be continued and the plaintiffs were to take notice on the defendants 6 and 7 and try to obtain the certificate under Section 65-B of the Act.

d) Subsequently, another application in A.No.961 of 2018 was taken out th by the plaintiffs seeking permission to examine the 6 defendant in the suit viz., V.R.Cecil Joseph, De Bene Esse before examination of any of the plaintiffs / respondents herein. The said application was partly allowed vide th order dated 15.02.2018 on the basis of consent of both parties that the 6 defendant will be examined after the examination of PW1 is completed.

e) Thereafter, two other applications in Appln.Nos.2160 and 2161 of

2018 came to be filed. The Appln.No.2160 of 2018 was filed to permit the plaintiffs to produce certain documents which are xerox copies of the th transcripts of the e-mail correspondence between the plaintiffs and the 6 defendant, and the Appln.No.2161 of 2018, was filed to permit the plaintiffs to file additional proof affidavit of PW1. Both these applications were allowed on 13.03.2018. While disposing of the said applications, the learned Judge, after referring to the judgments of the Hon’ble Supreme Court in the case of Shafhi Mohammad v. The State of Himachal Pradesh [(2018) 2 SCC 801], Anvar P.V. v. P.K.Basheer [(2014) 10 SCC 473] and in the case of Sonu @ Amar v. State of Haryana [(2017) 8 SCC 570], and having found that the permission that is sought for is only to produce the document, was of the opinion that the question of admissibility or authenticity or requirement of certificate and whether the plaintiffs / respondents herein are in a position to obtain the certificate under Section 65-B (4) of the Act, are matters to be gone into at the time when the documents are actually sought to be marked. Further, the learned Judge, having found that these were the documents to show that the plaintiffs / respondents herein were ready and willing to perform their part of the contract, was of the view that the application could not be thrown out at the threshold denying even an opportunity to produce these documents. For better appreciation, the relevant portions of the said order dated 13.03.2018 are extracted below:

“8. The plaintiffs/applicants would also claim that they had arranged for availing loan from ICICI bank for the purpose of purchasing the property and in order to show the readiness and willingness they had produced plaint document Nos.19,20 and 22. It is stated that the original of those documents have been misplaced and they seek permissio