1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER 1. S.B. Civil Writ Petition No.7556/2008 Murari Lal Versus Additional District & Session Judge & Another 2. S.B. Civil Writ Petition No.7557/2008 Murari Lal Versus Additional District & Session Judge & Another 3. S.B. Civil Writ Petition No.7558/2008 Murari Lal Versus Additional District & Session Judge & Another 4. S.B. Civil Writ Petition No.7559/2008 Smt. Sushila Devi Versus Additional District & Session Judge & Another 5. S.B. Civil Writ Petition No.7560/2008 Smt. Sushila Devi Versus Additional District & Session Judge & Another Date of Order :: 7th August, 2008 PRESENT HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Mr. Bihari Lal Agarwal with Mr. Amit Gupta for the plaintiff-petitioner BY THE COURT: Heard learned counsel for th petitioner. 2. The above referred five writ petitions arise out of similar order in 2 between same parties, therefore, the same are being disposed of by this common order. 3. Learned counsel for the petitioner contended that there were five agreements executed in between the parties in respect of disputed land which were divided in five parts. The petitioner Murari Lal filed two separate suits, whereas his wife Sushila Devi filed third suit. Two suits were filed by respondent no.2-Vijay Solvex Limited. All these suits were filed for specific performance of the agreement. All the five suits are going-on in the same court on the same day simultaneously, as contended by learned counsel for the petitioner. During the pendency of all these five suits, the petitioner Murari Lal and Smt. Sushila Devi filed five separate applications as plaintiff in their own suit and as defendant in the suit filed by respondent no.2 under Order 11 Rule 12 CPC in respect of alleged Tehreer-Annexure-3 in writ petition no. 7558/2008, alleged to have been executed in between respondent no.2- Vijay Solvex Ltd. and Jaipur Glass and Potteries Works Limited, Jaipur. The application under Order 11 Rule 12 CPC was 3 dismissed by the trial court in all the five cases. The said order was not challenged by the plaintiff-petitioner, as admitted by learned counsel for the petitioner. Subsequently, the petitioner Murari Lal and Smt. Sushila Devi in their respective suits as plaintiff and in remaining two suits filed on behalf of respondent no.2-Vijay Solves Limited, filed five separate applications under Section 65 of the Evidence Act to allow them to lead secondary evidence in respect of so-called Tehreer-Annexure-3 in writ petition no. 7588/2008, alleged to have been executed in between Jaipur Glass and Potteries Works Limited and respondent no.2-Vijay Solves Limited. The trial court rejected all the five applications in all the five suits by similar but separate order in each case on 21st May, 2008, which is subject matter of the present writ petitions. 4. Learned counsel for the petitioner contended that the trial court has committed an illegality in rejecting their application on the ground that a notice required under Section 66 of the Evidence Act has not been served on the opposite 4 party, whereas the said notice was not required to be served as his case was falling under clause (2) of proviso to Section 66 of the Act. 5. I have considered the submissions of learned counsel for the petitioner in the light of reasons assigned by the trial court for rejecting his application under Section 65 of the Act. Section 65 and 66 of the Indian Evidence Act, 1872 are reproduced as under:- o produce it, and when, after the notice mentioned in Section 66, such person does not produce it; 5 66. Rules as to notice to produce - Secondary evidence of the contents of the documents referred to in Section 65, Clause (a), shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to his attorney or pleader such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case; Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it: 1. When the document to be proved is itself a notice; 2. When from the nature of the case, the adverse party must know that he will be required to produce it; 3. When it appears or is proved that the adverse party has obtained possession of the original by fraud or force; 4. When the adverse party or his agent has the original in Court; 5. When the adverse party or his agent has admitted the loss of the document; 6. When the person in possession of the document is out of reach, or not subject to, thee process of the Court. 6. The above quoted clause (2) of proviso to Section 66 make it clear that the said provision is not applicable in the present case and contention of learned counsel for the petitioner cannot be accepted that his case was falling within this clause. 7. The Hon'ble Supreme Court in J. Yashoda Versus K. Shobha Rani {(2007) 5 SCC 730) considered the provisions of Section 65 and 66 of the Evidence Act and held as under: 6 “According to clause (a) of Section 65 of Evidence Act, secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the court, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it.” 8. In view of above discussion, I find that the reasons assigned by the trial court for rejecting the application of petitioner are fully justified in the eye of law and no interference in the said order is called for by this Court. I do not find any illegality, perversity or jurisdictional error in the impugned order so as to interfere with the same. There is no merit in these writ petitions and the same are, accordingly, dismissed in limine. 9. Since five writ petitions have been disposed of by this common order, the registry is directed to place a copy of this order in remaining four files. (NARENDRA KUMAR JAIN),J. DK