1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B. Civil Writ Petition No.9177/2007 (Tulsi Ram Marothiya through LRs Versus Tara Chand Tank & Others) Date of Order :: 27th August, 2009 PRESENT HON'BLE SHRI JUSTICE NARENDRA KUMAR JAIN Shri Naveen Kumar Sharma, Counsel for the petitioner(s) Dr. Ram Kishan Sharma, Counsel for the respondent(s) BY THE COURT: At the request of learned counsel for the parties, the arguments were heard and the case is being disposed of finally. The plaintiff-petitioner filed a suit for cancellation of agreement to sale, partition deed and for permanent injunction in respect of land-in-dispute. During the pendency of the suit, the plaintiff filed an application under Order 13 Rule 2 CPC dated 13th August, 2007 to place on record a copy of notice dated 9th January, 2001 along-with postal AD card duly signed by defendants. It was contended in the application that during the cross- examination the defendants refused of having received the notice. The original copy of notice and AD card were not traceable, therefore, the same could not be filed earlier. 2 Now he wants to place the same on record. The application was contested by the opposite party by filing a written-reply, wherein it was contended that even if original documents were not traceable, then at-least the photostat copies could have been placed on record as per the provisions of Order 12 Rule 18 and Order 11 Rule 14 & 15 CPC or permission could have been sought for producing the secondary evidence under Section 65 of the Evidence Act, therefore, the present application is liable to be dismissed. The learned trial court vide its order dated 10th October, 2007 rejected the said application. Being aggrieved with the same, the present writ petition has been preferred on behalf of the plaintiff. The submission of learned counsel for the petitioner is that looking to the controversy involved in the present suit, the filing of notice and postal AD card is necessary; the same were not traceable and he remained under this impression that the same was received, therefore, the defendants will admit this fact in their cross-examination, but they denied this fact in their cross- examination, therefore, now it is necessary to place the same on record. The document is 3 relevant one and will be helpful in deciding the real controversy in between the parties, therefore, the impugned order passed by the trial court be set-aside and application be allowed. The learned counsel for the respondents defended the impugned order passed by the trial court on the basis of plea as taken in the reply to the application in the trial court. I have considered the submissions of learned counsel for the parties and examined the impugned order. It is correct that it was the duty of the plaintiff to place and prove all the relevant documents at initial stage, but there is provision in the CPC that in case some material or relevant documents could not be placed on record at the relevant time, then the court can allow to place the same on record subsequently also. The defendants in their reply to application have not disputed the relevancy of the document. The application was opposed only on the ground that even if the original documents were not traceable, then the photostat copy thereof could have been produced or permission could be sought for producing the secondary evidence. 4 After considering all the facts and circumstances, I find that the documents in question are material and necessary and will be helpful in deciding the present case, therefore, in my view, the trial court committed an illegality in rejecting the application and in these circumstances, the impugned order is liable to be set-aside. So far as delay occurred on account of petitioner is concerned, the same could have been compensated by way of awarding cost, which is quantified as Rs. 2000/-. Consequently, the writ petition is allowed. The impugned order dated 10th October, 2007 passed by the trial court is set-aside. The application filed by the petitioner under Order 13 Rule 2 CPC dated 13th August, 2007 is allowed at the cost of Rs. 2000/-, which will be paid within a period of three weeks from today, failing which the application under Order 13 Rule 2 CPC will be deemed to have been dismissed. So far as this writ petition is concerned, the parties are directed to bear their own cost. (NARENDRA KUMAR JAIN),J. DK/