THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY CIVIL REVISION PETITION No.935 OF 2009 DATED: 09-02-2011 Between: K.Subramanyam Reddy. .... PETITIONER And K.Elumalai Reddy. .... RESPONDENT ORDER: This Civil Revision Petition is directed against the order, dated 25.07.2008, in O.S.No.497 of 2005 on the file of the learned Additional Senior Civil Judge, Tirupathi, whereunder the trial Court permitted the respondent- plaintiff to file the xerox copy of the suit agreement of sale instead of the original. 2. Heard learned counsel for the petitioner-defendant and the learned counsel for the respondent-plaintiff. Perused the records. 3. Respondent herein filed the suit for specific performance of agreement of sale, dated 12-03-2003. According to the plaintiff, the original agreement was taken away by the defendant from his custody on the promise of executing a sale deed in respect of the remaining property. A specific averment is also made to that effect in the plaint and the xerox copy of the agreement of sale was filed along with the plaint. The defendant filed a written statement denying the same and also specifically denying that the original agreement of sale is in his custody. Necessary issues were settled. When the matter came up for trial, plaintiff intended to exhibit the xerox copy of the agreement of sale by way of secondary evidence on the ground that the original is in the custody of the opposite party-the defendant. Defendant objected to same on the ground that the said allegation that the suit agreement of sale is with at the defendant is not proved and no notice was also issued by the plaintiff to the defendant seeking production of the original agreement of sale. The learned Additional Senior Civil Judge by impugned order permitted the plaintiff to exhibit the xerox copy of the agreement of sale by way of secondary evidence following the decision of this Court in T.PADMA v. ANREDDY SAI REDDY AND OTHERS[1], wherein it was held that the Court can permit the secondary evidence without issuing notice to produce original document if it appears to the Court that the original was taken possession by the opposite party. 4. In the plaint, it is specifically averred that the original agreement of sale was taken away by the defendant on the pretext of executing another sale deed in respect of the remaining land. No doubt, defendant disputes the same. It is therefore a matter to be decided on evidence as to whether the plaintiff parted with the custody of the original agreement of sale in favour of the defendant and under what circumstances, the plaintiff lost custody of the original agreement of sale. It is open to the plaintiff to adduce evidence on the aspect of the alleged loss of the original agreement of sale and it is equally open to the defendant to cross-examine the plaintiff and his witnesses. It is only after necessary evidence is adduced by both sides, the Court can come to the conclusion as to whether or not the alleged loss of the original by the plaintiff and the alleged taking away of the original agreement by the defendant from the plaintiff’s custody is true or not, but prima facie, when the plaintiff contends that the original agreement of sale-the suit document is in the custody of the defendant, an opportunity shall be given to the plaintiff to establish the said plea and for that purpose, it is necessary to permit him to adduce secondary evidence. It is not as though the plaintiff has raised the said plea for the first time at the time of evidence but even in the plaint itself a specific averment is made to the effect that the original agreement of sale is in the custody of the defendant. 5. Under those circumstances, in the interest of fair trial, it becomes necessary to afford an opportunity to the plaintiff to establish his plea that the original agreement of sale is in the custody of the defendant and it is equally open to the defendant to refuse the same. The impugned order, permitting the plaintiff to exhibit the xerox copy of the agreement of sale by way of secondary evidence in the circumstances of the case, does not therefore call for any interference by this Court. 6. Accordingly, Civil Revision Petition is dismissed with the above observations. Interim stay granted on 26-06-2009 stands vacated. There shall be no order as to costs. _______________________ G.V.SEETHAPATHY, J 09th February, 2011. Tsy [1] 2006 (3) ALT 409