IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH:: HYDERABAD TUESDAY, THE THIRTIETH DAY OF AUGUST TWO THOUSAND AND ELEVEN PRESENT:: HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.1689 OF 2010 Between: Ahmed Ali …Petitioner A n d Harihara Prasad and others ..Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.1689 OF 2010 ORDER: This civil revision petition is directed against the order dated 17.02.2010 in I.A.No.1425 of 2006 in O.S.No.2310 of 2004, on the file of the VII Senior Civil Judge, City Civil Court, Hyderabad, wherein the said application filed by the petitioner herein, the plaintiff, under Section 65 of the Indian Evidence Act seeking permission to lead secondary evidence to mark xerox copies of four documents, was dismissed. 2. Heard the learned counsel for the petitioner and the learned counsel for the respondents. Perused the record. 3. The petitioner herein filed the suit O.S.No.2310 of 2004 for specific performance of suit agreement of sale dated 11.09.1988 and for consequential declaration that the sale deed dated 27.05.1996 executed by D-1 in favour of D-2 and D-3 is not valid and binding and for consequential permanent injunction. The defendants filed written statement contesting the suit. After framing of necessary issues, the trial of the suit has commenced. 4. According to the plaintiff, himself and D-2 and D-3 entered into an agreement with D-1 for purchase of three mulgies and they approached an Advocate to file a suit for specific performance against D-1 and got a plaint drafted by handing over the original agreement of sale and also the receipts for payment of consideration. The plaintiff alleges that subsequently D-2 and D-3 went to the said Advocate and took back the original agreement and receipts fraudulently representing that the matter was settled and obtained registered sale deed in their names from D-1, including the plaintiff’s share of the property. The plaintiff complains that in spite of issuing notice, defendants 2 and 3 failed to produce the original agreement and also the receipts. He, therefore, seeks permission to adduce secondary evidence. The defendants deny the very existence of the agreement of sale and the receipts. They would contend that the question of permitting the plaintiff to adduce secondary evidence by way of xerox copies does not arise, until plaintiff establishes the existence of the original agreement. 5. It is not disputed that the plaintiff issued a notice to D-2 and D-3 on 03.08.2006 calling upon them to cause production of the originals of four documents. According to defendants 2 and 3, as the alleged agreement is not in existence, the question of producing the same does not arise. The learned Senior Civil Judge in the impugned order observed that the plaintiff may adduce evidence about the existence of the documents to substantiate the authenticity and he may avail the opportunity to lead secondary evidence. The petition was dismissed for the present permitting the plaintiff to exercise the right under Section 65 of the Indian Evidence Act at an appropriate stage. The impugned order does not, therefore, deprive the plaintiff of the opportunity to lead secondary evidence and states that it may be availed at an appropriate stage. 6. The suit is admittedly ripe for trial and the present application I.A.No.1425 of 2006 is filed seeking permission to lead secondary evidence on the eve of commencement of the trial. Section 65 of the Evidence Act enables a party to adduce secondary evidence over the existence, condition or contents of a document inter alia when the original is shown or appears to be in possession or power of the person against whom the document is sought to be proved and when, after the notice mentioned in Section 66, such person does not produce it. In the present case, admittedly in spite of notice, the defendants have not produced the documents. According to the plaintiff, the documents are in the custody of D-2 and D-3 and they are being suppressed. 7. The truth or otherwise of the said allegation has to be decided only on conclusion of the trial. To enable the plaintiff to adduce necessary evidence in support of his allegation, the Court can permit him to adduce secondary evidence when once it is shown that D-2 and D-3 have not produced the document in spite of notice issued by plaintiff. The circumstances under which, according to the plaintiff, the documents happened to remain in the custody of D-2 and D-3 are to be explained by the plaintiff during the course of his evidence. It is only after necessary evidence is adduced by both parties, the trial Court would be in a position to appreciate the rival contentions of the parties regarding the existence or otherwise of the documents. The question as to whether or not the plaintiff is able to substantiate the allegation that the documents are in the custody of D-2 and D-3 is also a matter to be appreciated only after the evidence is adduced. As rightly contended by the learned counsel for the petitioner, the application is filed at the appropriate stage on the eve of commencement of the trial. The dismissal of the application on the ground that it is not filed at appropriate stage is not justified. The impugned order is, therefore, held liable to be set aside and is accordingly set aside. The petitioner/plaintiff is permitted to adduce secondary evidence under Section 65 of the Evidence Act in respect of documents 1 to 3 mentioned in the petition. Document No.4 being certified copy of judgment and decree in O.S. No.1668 of 1997 certified copy thereof can always be filed and no permission for adducing secondary evidence in respect of the said document is required. 8. In the result, the civil revision petition is allowed accordingly. There shall be no order as to costs. ________________________ G.V.SEETHAPATHY, J 30th August, 2011 Lrkm