S.B.Civil Writ Petition No.81/05 Onkar Lal v. UIT, Udaipur & ors. 1 S.B.Civil Writ Petition No.81/05 Onkar Lal v. UIT, Udaipur & ors. Date of Order:- 28.1.2009 HON'BLE MR.JUSTICE PRAKASH TATIA Mr. Suresh Shrimali for the petitioner. Mr. Deelip Kaswadia, Mr. Tribhuvan Gupta for the respondents. Heard learned counsel for the parties. The petitioner's application filed under Section 65 of the Evidence Act was dismissed by the trial court and the trial court observed that unless it is proved that the copy which has been produced for admitting in evidence as secondary evidence, is proved to be true and correct copy of the original document, cannot be admitted in evidence. The trial court also observed that the photo-stat copy is not admissible when original document was not produced, has been held by the Calcutta High Court. It appears from the facts of the case that the plaintiff gave reference of the Patta in question in the original plaint as the suit was filed in the year 1995. He also referred the fact relating to the police investigation conducted on the FIR lodged by the defendant on 7.3.1996 and according to the plaintiff, the investigating officer, found the land in question to be covered by the Patta of the plaintiff. The learned counsel for the respondents vehemently submitted S.B.Civil Writ Petition No.81/05 Onkar Lal v. UIT, Udaipur & ors. 2 that the entire story set up by the plaintiff about loss of the original document is false as according to him, in the theft committed in the month of February, 1996, the said Patta in question was taken away by the thief, whereas as per the facts mentioned in para 8, he has shown the original Patta to the investigating officer who was investigating the case registered on lodging the FIR by the defendant. In view of the above, the petitioner's contention that the original document was lost in February,1996 is false. It is also submitted that once the document is admitted in evidence under Section 65 of the Evidence Act, the defendant will be deprived from taking objection about admissibility of the document as well as may be deprived from challenging the correctness of the copy of the original produced in evidence by the plaintiff and further more the defendant will not be able to prove that there was no such Patta in existence and, therefore, there could not have been any copy of the original document so as to create title in favour of the petitioner. Since it is a question involved in the main suit itself wherein the plaintiff pleaded that he has title by virtue of Patta in question and, therefore, the burden is upon the plaintiff to prove his title to the property, So far as admitting the document in question is concerned, the document in question produced by the plaintiff is the photo-stat copy of S.B.Civil Writ Petition No.81/05 Onkar Lal v. UIT, Udaipur & ors. 3 the Patta. That has been obtained by mechanical process. The issues have not been decided by the trial court about the fact whetehr there was any original document or not so as to prove existence of copy of the document. Without holding any enquiry, the trial court rejected the application of the plaintiff. In that situation, it will be trial within trial if no preliminary enquiry is held for finding out, whether there was original document or not, whether it is lost or not, whether it is lost in the manner in which it is stated and whether the copy produced is the true and correct copy of the original and these issues can be examined by the court during trial as the document can be admitted in evidence subject to just objections which includes all above questions,. The admission of a document in this situation, cannot deprive the other party to raise objection about the very foundation for coming into existence of original document. Therefore, it will be appropriate that the document be admitted in evidence subject to all rights of the defendant including the right to allege that the original document was never issued or came in existence so as to give birth to its photo-stat copy. The defendant's right for taking objection about the document for creating title in favour of the plaintiff, will also be available. In short, all the defences which can be taken in preliminary enquiry, will be available to the defendant during trial of the suit. In view of the above reasons, the writ petition is allowed. The S.B.Civil Writ Petition No.81/05 Onkar Lal v. UIT, Udaipur & ors. 4 order of the trial court dated 16.8.2004 is set aside. The document in question, i.e. Photo-stat copy of the Patta dated 12.7.1953 is admitted in evidence for limited purpose with right to the defendant to raise his all objections about the genuineness, correctness and validity of the document including the objections that there was no original document and it is not the correct copy, therefore, it is not creating any title in favour of the plaintiff, all those objections will be decided by the trial court while deciding the main suit after evidence of the parties. (PRAKASH TATIA)J mlt.