// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.3665/2004 Mahesh Chand S/o Shri Johri Lal Versus Shridhar S/o Shri Badri Prasad and Another Date of Order ::: 17.07.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Keshav Agrawal, Counsel for petitioner Shri Rajneesh Gupta, Counsel for respondent No.1 #### By the Court:- Admit. Heard learned counsel for the parties. Plaintiff-petitioner filed a suit for cancellation of the sale-deed dated 22nd February, 1993 against the defendant- respondent No.1. During the pendency of the suit, the plaintiff filed an application dated 6th March, 2003 under Section 65 of the Evidence Act seeking permission of the Court to allow the plaintiff to produce secondary evidence in respect of two sale-deeds dated 15.12.1989 and 22.02.1993. The trial court, vide its order dated 4th March, 2004, rejected the said application. Being aggrieved with the same, the plaintiff has preferred the present // 2 // writ petition. The learned counsel for the petitioner contended that earlier the plaintiff had filed one application on 13th May, 1999 under Order 11 Rules 12 & 14 CPC to issue directions to the defendants to produce original sale-deeds dated 15.12.1989 and 22.02.1993 but the same was dismissed on 15.02.2001. He contended that both the documents are in possession of the defendants, therefore, he may be permitted to lead secondary evidence by producing the Photostat copies of the said documents and the same may be exhibited in the case. He contended that the trial court has committed an illegality by rejecting his application on the ground that both the sale-deeds are on insufficient stamps and unregistered, therefore, they are not admissible in evidence and, as such, their secondary evidence cannot be allowed to be adduced whereas they were admissible for collateral purpose. He contended that the impugned order passed by the trial court is illegal and the same may be set-aside. The learned counsel for the respondents contended that the trial court rightly rejected the application under Section 65 of // 3 // the Evidence Act filed by the petitioner as the documents, in question, are on insufficient stamps and unregistered, therefore, no interference should be made in the order passed by the trial court. I have considered the submissions of the learned counsel for the parties and examined the impugned order dated 4th March, 2004. The Hon'ble Supreme Court in Bondar Singh and Others Vs. Nihal Singh and Others – (2003) 4 SCC 161, considered the similar controversy and held that unstamped and unregistered sale-deed, though does not convey title to the vendee and not admissible in evidence, can be looked into for collateral purposes. This Court also took the same view in Roshan Bai Daughter of Shri Ram Chandra Vs. Madan Lal S/o Shri Bhuralal – 2007 (1) ILR (Raj.) 379. The case of the plaintiff is that both the documents were given by him to the defendants and they are in his possession. He also moved an application under Order 11 Rules 12 & 14 CPC but the same was dismissed. However, he has already placed on the record Photostat copies of the same and both the documents are relevant and material for proper // 4 // adjudication of the present case. Since the original documents are not with the plaintiff, therefore, he should be allowed to exhibit the Photostat copies of the sale-deed as secondary evidence in the case. After considering the submissions of learned counsel for the parties, I am of the view that the trial court committed an illegality in rejecting the application of the plaintiff. The Photostat copies of the documents i.e. sale-deeds dated 15.12.1989 and 22.02.1993 ought to have been allowed in the facts and circumstances of the present case and they should be allowed to be exhibited in the case and the same will be used only for collateral purpose in accordance with the law. Consequently, the writ petition is allowed. The impugned order dated 4th March, 2004 passed by the trial court is set-aside. The application filed by the petitioner under Section 65 of the Evidence Act is allowed and he is permitted to produce secondary evidence in respect of sale-deeds dated 15.12.1989 and 22.02.1993 and same will be exhibited in the case and the admissibility and use whereof will be considered by the trial court in accordance with the law while deciding the // 5 // suit. There will be no order as to costs. (Narendra Kumar Jain) J. //Jaiman//