ORDER:

This civil revision petition under Article 227 of the Constitution of India is directed against the order dated 08.01.2020 in I.A.No.1174 of 2019 in O.S.No.79 of 2012, on the file of the I-Additional District Judge, Warangal, wherein the said application filed by petitioner-plaintiff under Section to 65 of the Indian Evidence Act (for short ‘the Act’) to mark the photostat copy of the agreement of sale dated 20.04.2011 as exhibit, was dismissed.

2. Heard learned counsel for the petitioner and learned counsel for respondents. Perused the record.

3. The petitioner-plaintiff filed the suit O.S.No.79 of 2012 for specific performance of an agreement of sale dated 20.04.2011. The respondents-defendants filed written statement and issues were settled and the suit was coming up for trial. While so, the petitioner filed an application in I.A.No.1174 of 2019 under Section 65 of the Act to receive the photostat copy of the agreement of sale dated 20.04.2011 as secondary evidence and mark the same as exhibit.

After considering the material available on record, the trial court dismissed the said application holding that the photostat copy of the said agreement of sale dated 20.04.2011 cannot be received as secondary evidence and marked. Aggrieved thereby, the present revision is filed.

4. Learned counsel for the petitioner submits that the trial court had committed error in not receiving xerox copy of agreement of sale as secondary evidence under Section 65 of the Act and same ought to have been received as secondary evidence and marked; that the original agreement of sale executed by respondent Nos.9 and 10 was missing and the same is not disputed, as the same is covered under the notices given by respondent Nos.9 and 10 to the petitioner; and the impugned order may be set aside by allowing the revision. In support of his submissions and contentions, learned counsel for the petitioner placed reliance on the Division Bench judgment of this court in KRISHNAPATNAM PORT CO., LTD., HYDERABAD v. CARGILL INDIA PVT. LTD., NEW DELHI AND ANOTHER1.

12018(5) ALD 13 (DB)

5. Per contra, learned counsel for the respondents, while supporting the impugned order, submitted that the trial court had rightly refused to receive xerox copy of the agreement of sale as secondary evidence under Section 65 of the Act as the petitioner failed to lay any foundation in her pleadings and as such the trial court had rightly dismissed I.A.No.1174 of 2019. He, therefore, prayed to dismiss the revision. In support of his submissions and contentions, learned counsel for the respondents placed reliance on the following decisions of the Hon’ble Apex Court and of this court:

i) JUPUDI KESAVA RAO v. PULAVARTHI VENKATA SUBBARAO AND OTHERS2 ii) VEENA HASMUKH JAIN AND ANOTHER v. STATE OF MAHARASHTRA AND OTHERS3 iii) SMT.J.YASHODA v. SMT.K.SHOBHA RANI4 iv) P.VENKATA SUBBA RAO v. J.KESHAVRAO5 v) K.NEELAMMA v. B.SURYANARAYANA6 vi) E.VENKAT REDDY AND ANOTHER v.

E.YADGIR REDDY AND OTHERS7

21971(1) SCC 545 3(1999) 5 SCC 725 4AIR 2007 SC 1721

51968 (1) ALT 14 (S.B) 61990(2) ALT 171 (S.B)

7AIR 1973 AP 398

vii) VANAPALLI JAYALAXMI @ VENKATA JAYALAXMI v. ANNEM KONDALARAO AND OTHERS8 viii) SRI BAURIBANDHU MOHANTY AND ANOTHER v. SRI SURESH CHANDRA MOHANTY AND OTHERS9

6. Thus, on hearing the submissions of both the learned counsel and after considering the material on record, the sole question that arises for consideration is – whether the xerox copy of the agreement of sale dated 20.04.2011 can be received and marked in evidence under Section 65 of the Act?

7. The contention of petitioner’s counsel is that the document i.e., xerox copy of the agreement of sale can be categorized as secondary evidence, according to what is defined in Section 73 of the Act. Undisputedly, the category of the documents, in this case, is falling under the above definition. In the decision relied on by learned counsel for the respondents, the Hon’ble Apex Court in Jupudi Kesava Rao’s case (2 supra) observed, at para 10, a