S.B.CIVIL WRIT PETITION NO. 145/2005 Kanhaya Lal vs. ADJ No.2,Udaipur & ors. DATE OF ORDER : 26/11/2009 1/4 S.B.CIVIL WRIT PETITION NO. 145/2005 (Kanhaya Lal vs. ADJ No.2,Udaipur & ors.) DATE OF ORDER : 26/11/2009 HON'BLE DR.JUSTICE VINEET KOTHARI Mr.D.R.Bhandari, for the petitioner. Mr. Mahesh Joshi for Mr.Suresh Shrimali for the respondents. This writ petition is directed against the order dated 26/10/2004 passed by the learned trial court, whereby, the defendant's application under Section 65 of the Evidence Act was allowed by the learned trial court and certain documents including the alleged family arrangement dated 1/7/1991 were permitted to be taken in evidence as secondary evidence, the photo copy of the original document. Learned counsel for the plaintiff petitioner Mr. D.R.Bhandari urged that the learned trial court has erred in allowing the application of defendant for leading secondary evidence on two counts, (i) that the notice under Section 66 of the Evidence Act was not given to the plaintiff by defendant-applicant prior to applying to the Court for taking the said evidence as secondary evidence, which is mandatory. He relied upon the judgment in case of Rajasthan Golden Transport Company vs. Amritlal – 1988 (1) RLW 683 in this regard and (ii) S.B.CIVIL WRIT PETITION NO. 145/2005 Kanhaya Lal vs. ADJ No.2,Udaipur & ors. DATE OF ORDER : 26/11/2009 2/4 secondly he submitted that the said document dated 1/7/1991 which is Ex.3A on record of present writ petition itself stipulates in the end that both the parties to the said agreement had agreed to prepare two original copies thereof and one to be kept by both of them respectively. He, therefore, submitted that original document is admittedly with the defendant applicant and no secondary evidence could be led by him as photo copy of the said document. On the other hand, learned counsel for the respondent- defendant submitted that as far as notice under Section 66 is concerned, that should be deemed to have been waived by the petitioner-plaintiff as right from the stage of written statement including the application under Order 11 Rule 12 CPC, the defendant had stated before the trial court that this document was in the possession of the plaintiff petitioner and since he had denied the same, he should be permitted to lead the secondary evidence for the same. He also submitted that while deciding the application under Order 11 Rule 12 CPC, the learned trial court itself observed that appropriate steps may be taken by the defendant under the Evidence Act in this regard. He also relied upon certain decisions of this Court in the case of Onkar Lal vs. UIT, Udaipur & ors. - 2009 (1) CDR S.B.CIVIL WRIT PETITION NO. 145/2005 Kanhaya Lal vs. ADJ No.2,Udaipur & ors. DATE OF ORDER : 26/11/2009 3/4 225 (Raj.), M/s. Hindustan Engineering Co. & Anr. vs. Bhagwanlal & anr. - 2002 WLC (Raj.) UC 285 & Gangadhar vs. Pukhraj & Ors. (S.B.Civil Writ Petition No.664/98 decided on 20.7.98). He submitted that since the plaintiff had denied the existence of said document, therefore, defendant applicant was entitled to move the court for leading the secondary evidence of said family arrangement dated 1/7/1991. He, however, could not satisfactorily explain the averment in the document dated 1/7/1991 Ex.3-A which stipulates that the original of said document itself was available with the defendant and there was no averment in the application under Section 65 of the Act that original available with him had been lost or destroyed as required under Section 65 (1) (c ) of the Evidence Act. Having heard learned counsels and upon perusal of the impugned order and judgments cited at the bar, this Court is satisfied that in view of the stipulation in the said document Ex.3-A of which secondary evidence in the form of photo copy was sought to be led by the defendant applicant that the parties had prepared two original copies thereof, one to be kept by each and there is no averment in the application under Section 65 of the Act that such original copy with S.B.CIVIL WRIT PETITION NO. 145/2005 Kanhaya Lal vs. ADJ No.2,Udaipur & ors. DATE OF ORDER : 26/11/2009 4/4 the defendant has been lost or destroyed, the basic requirement of Section 65 (1) (c ) of the Evidence Act is not satisfied. As far as giving of notice under Section 66 is concerned, the proviso to Section 66 itself stipulates various conditions in which such a notice can be deemed to have been waived or served, as the case may be. Further, in view of above, the contention of learned counsel for the respondent defendant that secondary evidence of other documents could be allowed to be led also cannot be sustained and same is hereby turned down. In the facts and circumstances of the case, it appears that not giving such notice by the defendant applicant to the plaintiff cannot be fatal as plaintiff had sufficient knowledge of the stand of the defendant in this regard, however, since basic requirement of Section 65 (1) (c ) is not satisfied in the present case, the impugned order passed by the learned trial court cannot be sustained. Consequently, this writ petition is allowed and the impugned order dated 26/10/2005 is set aside. (DR.VINEET KOTHARI),J. Itemno.24 baweja/-