IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE AMIT SETH WRIT PETITION No. 5807 of 2017 SMT. SHOBHA VASHISHTHA THR. POWER OF ATTORNEY SHRI MAHENDRA SINGH Versus ALLAHABAD BANK THR. AND OTHERS Appearance:

Shri Rohit Bansal - Advocate for the petitioner.

Shri Harshavardhan Topre - Advocate for the respondents.

Reserved on : 26/09/2025 Delivered on : 04/11/2025 ORDER

1. With the consent of parties, the matter is heard finally.

2. The instant writ petition under Article 227 of the Constitution of India challenges the order dated 24.08.2017 passed by the learned trial Court whereby, the application preferred by the petitioner under Section 65 of the Indian Evidence Act, seeking permission to prove the photocopy of the draft lease agreement as secondary evidence, has been rejected.

3. Brief facts leading to filing of the instant writ petition are as under:- 3.1 The petitioner/plaintiff instituted a suit for recovery of sum of Rs.14,41,561/- along with interest against the respondents/defendants on the ground that a hall admeasuring 1700 sq.ft. situated at Jal Mandir Road, New Block Shivpuri, belonging to the petitioner, was agreed to be taken on rent by the respondents.

3.2 As per the case of the petitioner, she spent a considerable amount of money in making the premises adequate for being rented out to the respondents, such as installation of meter and electric connection along with certain other civil works.

3.3 It is further the case of the petitioner that the possession of the premises was taken over by the respondents on 3.8.2011, but they refused to execute a formal lease agreement and on 14.10.2013, the respondents allegedly refused to continue with the petitioner's premises and for this, the suit for recovery of arrears of rent and other expenses incurred by the petitioner was filed against the respondents.

3.4 As per the petitioner, a draft lease agreement was executed between the her and the respondents under which, the possession of the premises was taken by the respondents and therefore, based upon the said draft lease agreement, the civil suit was filed by her.

3.5 On the other hand, the civil suit was opposed by the respondents on the ground that no draft lease agreement as contended by the petitioner was ever executed between the petitioner and the respondents. The respondents have not taken the possession of the premises from the petitioner and therefore, not liable to pay anything to the petitioner.

3.6 An application under Order 11 Rule 16 read with Section 151 CPC came to be filed by the petitioner before the learned trial Court seeking summoning of the original draft lease agreement. The said application was opposed by the respondents on the ground that they don't possess any such draft lease agreement and on the basis of the reply submitted by the respondents, the learned trial Court passed the order dated 13.07.2017 whereby, the application under Order 11 Rule 16 read with Section 151 CPC filed by the petitioner was rejected stating that the defendants cannot be compelled to produce a document which is stated to be not possessed by them.

3.7 After declaring the evidence closed by the petitioner on

21.06.2017, on the date fixed for defendants’ evidence i.e. 27.07.2017, she moved an application under Section 65 of the Indian Evidence Act read with Section 151 of the Code of Civil Procedure, seeking permission to prove the photocopy of the draft lease agreement as secondary evidence. It appears that on the same date, the petitioner pressed her said application contending that prior to proceedings with the evidence of defendant, her application under Section 65 of the evidence Act be considered, but trial court observed that since the date is fixed for the evidence of the defendant, the same cannot be deferred/stayed till the disposal of the application filed by the petitioner. Time was though granted to the petitioner for the cross examination of the defendant's witness and the case was therefore f