HIGH COURT OF CHHATTISGARH, BILASPUR Writ Petition (Art. 227) No.5246 of 2011 {Writ petition under Article 227 of the Constitution of india} Present: Mr. K.A. Ansari, Senior Advoate with Mr. R.L. Bajpayee, Advocate for the petitioners. Mr. Somnath Verma, Advocate for the respondent. ’ r. T.P. Sharma, J Sinqle Bench: Honble M ORDER (5-12-201 1) x._ . B this writ petition under Article 227 of the Constitution of India, the petitioners have chailged legality and propriety of the order dated 22-7- 2011 passed by the 4‘“ Additional District Judge, Bilaspur in Civil Suit No.74A/2011, whereby the application for permission to produce and lead secondary evidence, filed on behalf of the plaintiffs/petitioners herein has been dismissed. N . Counsel for the petitioners has also filed photocopy of the alleged agreement i.e. secondary evidence. . l have heard learned counsel for the parties, perused the order impugned and copies of other documents. 4; Learned Senior Advocate appearing on behalf of the petitioners submits that the respondent herein has executed an agreement on 26-5-2007 in .} I which he has put his thumb impression but the original agreement has been lost. Husband of petitioner No.1 Madan Lal Agrawal has lodged report on 30-7-2009 that on 30-1—2009, the document along with papers has been lost \ and some body has stolen the same along with a bag. The application filed ‘ c y en \ PETlTlONERS/: 1. Savita Agrawal W/o Shri Madan Lal (Plaintiffs) Agrawal, aged about 44 years, R/o Link Road, Bilaspur, Tahsil & District Bilaspur (C.G.) 2. Ram Kumar Dubey S/o Bhusan Kumar Dubey, aged about 46 years, R/o Village Chirchida, Tahsil Takhatpur, District Biiaspur (C.G.) Versus RESPONDENTI: Radhamai S/o Hasmatmal, aged about (Defendant) 63 years, R/o Chakarbhata, Bodri, Tahsii Bilha, District Bialspur (C.G.) on behalf of the petitioners herein has been dismissed on the ground that the petitioners have failed to show the circumstances in which permission for secondary evidence under Section 65 of the Evidence Act can be granted i.e. they have failed to show that original document has been lost. . On the other hand, learned counsel for the respondent vehemently opposes the petition and submits that the Court below has rightly dismissed the application for leading secondary evidence of the document. Learned counsel further submits that as per Annexure P-6, the report lodged by husband of petitioner No.1, dated 30-7-2009, the alleged agreement has been stolen on 30-7-2009. Petitioner No.1 has examined herself in the Court. In para 8 of her cross-examination, she has specifically admitted that during proceeding before the Tah'sildar she has not filed the agreement because at that time it was lost. She has admitted in para 11 of her cross- examination that the Tahsildar has passed order on 31-5-2008 which reveals that the alleged agreement has been lost before 31-5-2008, but as per Annexure P-6, the above alleged document has been lost/stolen on 30- 7-2009 much after the decision of the Court of the Tahsildar. Learned counsel also submits that in para 13 of her cross-examination she has specifically deposed that the alleged agreement was not signed by any of the witnesses. Learned counsel contends that the aforesaid evidence given in the Court by petitioner No.1 and the report lodged by her husband clearly reveal that the alleged document which the petitioners have tried to file and tried to adduce in secondary‘evidence, is not copy of the document of original agreement which the petitioners are claiming. Therefore, the Court below has rightly dismissed the application filed under Section 65 of the Evidence Act. . Learned counsel for the respondent further contends that as per three notarized seals found in the alleged document, the document has been notarized on 26-5-2007, but another notarized seal found on bottom of the document shows the date of 14m October, 2007. This also creates serious doubt. . Report lodged by husband of petitioner No.1 and paras 8, 11 & 3 of evidence of petitioner.No.1 herein are not in consonance with the alleged document i.e. the alleged agreement which the petitioners have tried to file before the Court and have applied for secondary evidence. However, as per claim of the petitioners’herein, the respondent herein has executed the document andthe document reveals one thumb impression and signature \ , . \ of witnesses & purchaser. Although the document is not in consonance i 1 with the alleged original document, but stiil it appears that one person has executed the document and has put his thumb impression. Evidentiary value of this document and another document whether genuine or forged wouid be decided at the time of final hearing. in suitable cases, the respondent is also at liberty to take appropriate step and the Court is also required to take suitable/appropriate action in relation to the document, if ultimately the Court finds that the document is not genuine and is forged. Butat this stage, it would not be proper to disallow the application filed under Section 65 of the Evidence Act. While dismissing the said application the Court below has committed illegality. . Consequently, the petition is allowed and the order dated 22—7-2011 passed by the 4‘“ Additional District Judge, Bilaspur in Civil Suit No.74A/2011 is hereby quashed. The plaintiffs/petitioners herein are permitted to lead secondary evidence under Section 65 of the Evidence Act relating to aforesaid documentand the‘respondent herein isxat liberty to raise all grounds including commission of forgery of the document. However, still the petitioners are at liberty to lead or not to lead secondary evidence. No order as to costs. 1M*, . 5d]- T.P. Sharma/ , Judge l'