JUDGMENT

RAJ MOHAN SINGH, J. –

1. Petitioner has filed this revision petition against the order dated 05.07.2017 passed by the Civil Judge (Jr. Divn.) Ludhiana vide which prayer of the defendants for leading secondary evidence in terms of Section 65 of the Indian Evidence Act (hereinafter to be referred as 'the Act') was allowed.

2. Brief facts are that the plaintiff filed a suit for declaration to the effect that the plaintiff has one half share in the property measuring 36 sq. yards having defined dimensions. Further relief of permanent injunction was also sought. During pendency of the suit, the application under Section 65 of the Act was filed by the defendants for leading secondary evidence to prove photocopy of alleged memorandum of oral settlement/ compromise and affidavit dated 30.03.2013 effected between plaintiff and defendant No.1 which was attested on 17.04.2013.

3. The aforesaid application was contested by the plaintiff on the ground that memorandum of settlement and the alleged affidavit dated 30.03.2013 were forged and fabricated documents and the alleged documents were never executed, therefore, there was no question of leading secondary evidence by the defendants. The alleged execution of affidavit by the plaintiff was in respect of withdrawal of the civil suit. The original memorandum of settlement was in possession of the plaintiff and plaintiff failed to produce the same.

4. The trial Court having noticed the factual matrix allowed the application to prove the documents which were alleged to be in possession of the person against whom the same was sought to be proved.

5. As per Section 65 of the Act, filing of an application for secondary evidence is not contemplated as necessary procedure. Secondary evidence can be produced where original has been destroyed or lost or the party offering evidence on his contest cannot, due to any other reason, not arising from his own default produce the same in reasonable time. The prayer can be allowed, when document is not traceable. The exhibition of a document and inviting an objection thereupon has to be seen in the context of Order 13 Rule 4 CPC. Practice of objecting to the exhibition of the document and inviting the Court to give finding on the relevancy of the document has an inevitable consequence of holding up the trial. If Court is not in a position to take immediate decision on the relevancy or admissibility of the document, the only exception could be when the document is insufficiently stamped or the document not stamped since the bar to reception of the document is absolute under Section 35 of the Indian Stamp Act. Such a phenomenon stands on different footing than the instance, where admissibility of document would be proved at a later stage. Mere exhibition of a document does not dispense with the proof of execution.

6. In case of loss of original document, the party should be granted leave to lead secondary evidence. Whether the party seeking leave of the Court for leading secondary evidence ultimately succeeds in proving the document or not is a question of fact which depends upon the evidence. The grant of leave to lead secondary evidence does not mean that the document is admitted in evidence, nor it is a finding of the existence of any of the conditions indicated under Section 65 of the Act. It only amounts to holding of an inquiry regarding existence of a document and its loss under some circumstances. Failure or success to prove the existence of document or its loss cannot be pre-judged that too without providing any opportunity to the parties. Whether the document is proved or not, is to be seen after grant of leave and evidence produced is evaluated by the Court.

7. In the light of aforesaid position, I am of the view that there is no error of jurisdiction in the impugned order passed by the trial Court. This revision petition is accordingly dismissed.

Petition dismissed.

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