S.B.Civil Misc. Appeal No.531/06 Aladeen vs. Smt. Wahida & ors. 1 S.B.Civil Misc. Appeal No.531/06 Aladeen vs. Smt. Weahida & ors. Date of Order: 11.12.2008. PRESENT HON'BLE MR. PRAKASH TATIA, J. Mr. Nitin Trivedi for the appellant. Mr. Ajay Vyas for the respondents. ... Heard learned counsel for the parties. The appellant is aggrieved against the order dated 9.3.2006 by which the review was allowed by the trial court and the trial court set aside its earlier order dated 14.2.2005 passed on defendant's application filed under Order 11 Rule 12 and 14 read with 151 CPC. Brief facts of the case are that the plaintiffs filed suit for permanent injunction against the appellant-defendant wherein the appellant-defendant submitted that the plaintiff was married to his brother Rajak Ali but she was divorced on 20.4.1994. For this purpose, a Talaknama was executed on 20.4.1994. The original Talaknama is in possession of the plaintiff and the photo-stat copy was produced before the trial court by the defendant. The defendant-appellant prayed that original Talaknama may be summoned from the plaintiff. The plaintiff herself in reply to the said application stated that her husband is not found since last more than seven years and, therefore, a presumption may be S.B.Civil Misc. Appeal No.531/06 Aladeen vs. Smt. Wahida & ors. 2 drawn about his civil death. She denied execution of any Talaknama. However, the trial court yet directed the plaintiff- respondent to produce the Talaknama original in the court. Being aggrieved against the trial court's said order dated 14.2.2005, the plaintiff submitted a review application which was allowed by the trial court on the ground that inadvertently it has been taken that the copy of the Talaknama was produced by none else but the plaintiff herself. There are other reasons given by the trial court for setting aside the order dated 14.2.2005. It appears that despite the fact that the plaintiff denied the existence of the Talaknama dated 20.4.1994, the trial court without holding an enquiry about the existence of the original document and it's being in the possession of the plaintiff, directed the plaintiff to produce the document. Said order has been set aside by the court by review order dated 9.3.2006. In the facts of the case, when the existence of original document is in dispute as disputed by the plaintiff then it will be appropriate that in case the appellant submitted an application for producing the secondary evidence with respect to the copy of the Talaknama dated 20.4.1994 produced by him, then after giving opportunity to the plaintiff, the issue can be decided by the trial court whether to grant permission for taking in evidence the photo-state copy of the Talaknama in view of the fact that the original is admittedly not in possession of the appellant-defendant and the plaintiff is denying its existence. S.B.Civil Misc. Appeal No.531/06 Aladeen vs. Smt. Wahida & ors. 3 Therefore, the appeal of the defendant-appellant is disposed of with liberty to the appellant to move an application under Section 65 of the Evidence Act before the trial court and the trial court is directed to decide the application after giving full opportunities of hearing to the parties. (PRAKASH TATIA),J. Mlt