The court emphasized the necessity for reconsideration of secondary evidence in light of previously submitted receipts, asserting the importance of ensuring all relevant documents are addressed.

1. This writ petition under Art.227 of the Constitution of India has been filed by the petitioner seeking following reliefs: -
"It is therefore, most humbly prayed kindly allowing the petition impugned order Annexure P - 1 passed by the Court below may kindly be set aside and further it may kindly be ordered to permit the petitioner to exhibit the carbon copy of Annexure P / 3 and P / 4 in evidence. Any other suitable relief order or direction in the facts and circumstances of the case this Hon'ble Court deems fit may also be passed."

2. It is submitted by the learned counsel for the petitioner that petitioner is a registered partnership firm which has filed suit for permanent injunction against the respondent in respect of agricultural land situated at village Chirwai, District - Gwalior. Original documents with respect of partnership firm were submitted to the Income Tax Department, therefore, an application under O.16 R.6 of CPC was filed before the trial Court to call original documents from the Income Tax Department. Application was allowed by the trial Court and accordingly, original record was called for from Income Tax Department.

3. On 03/05/2018, the Deputy Commissioner of Income Tax Department sent a letter to the trial Court to the effect that record is very old and therefore, the same is not traceable and thus, office is unable to provide the same.

4. In such circumstance, petitioner filed an application under S.65 of Evidence Act and prayed for permission to the petitioner to exhibit the carbon copy of the partnership deed as a secondary evidence.

5. Application has been dismissed by the trial Court by order dated 11/11/2021 on the ground that petitioner has not filed any documents to show that original partnership deed was submitted to the Income Tax Department.

6. It is the submission of the learned counsel for the petitioner that it appears that aforesaid reasoning assigned by the trial Court has been made in ignorance of documents already filed by the petitioner. Acknowledgment of receipt of original documents issued by the Income Tax Department was already filed before the trial Court (Annexure P / 5 and P / 6).

7. Per contra, learned counsel for the respondent No.9 also submitted that objections raised by the respondent No.9 were not taken into consideration by the trial Court while deciding the application seeking permission to lead secondary evidence.

8. Heard learned counsel for the parties.

9. Permission to lead second evidence was rejected only on the ground that petitioner has not filed any document to show that the original partnership deed etc. were submitted before the Income Tax Department.

10. It is the case of the petitioner that photocopy of the receipts were already submitted before the trial Court and they were on the record on the day when the impugned order was passed.

11. Under these circumstances, the order dated 11/11/2021 passed by 3rd District Judge, Gwalior in Case No.168A / 2014 is hereby set - aside and the matter is remanded back to the trial Court with the following direction: -
"(1) If the receipts which have been filed as Annexure P / 5 and P / 6 were already on record on the date of passing the impugned order, then the trial Court shall reconsider the application afresh in the light of the receipts so submitted by the plaintiff and while doing so shall also consider all the defenses / objections which may be raised by the plaintiffs."

12. Since this Court has not considered the merits of the case, therefore, direction to re - decide the application afresh should not be construed as a direction to allow the application and application shall be decided strictly in accor