- (1.) - The petitioner-defendant No. 2 is aggrieved of the impugned order, whereby application filed under Section 65 of the Indian Evidence Act to prove on record alleged agreement to sell dated 16.05.2005 by way of secondary evidence, has been allowed.
(2.) Mr. Chetan Mittal, Sr. Advocate assisted by Mr. Alok Kumar Jain, Advocate submits that impugned order does not confirm to the statutory requirement of law. Even otherwise, no foundation has been laid enabling the Court to grant permission, for, leading secondary evidence as on appearance, application was moved for production of the original agreement to sell. However, in reply, it was stated that it will be produced as it was misplaced during the whitewash and thereafter in the application under Section 65, different tinge & colour qua the same, that it was lost two years back at the time of whitewash, therefore, there is inconsistency in respect of stand with regard to the availability of the agreement to sell. In support of his contention, he submits that second copy of the agreement to sell is sought to be placed but a photocopy of the same was placed which in law is not permissible. Photocopy has to be taken into consideration only when there are attenuating circumstances inasmuch as that one set of the original photocopy is summoned from the office as record but the Court below has, in blanket manner allowed the application without even giving liberty qua its existence and loss and, therefore, impugned order is not sustainable in law.
(3.) Mr. Pankaj Jain, learned counsel appearing on behalf of respondents-plaintiff submits that parameters for allowing the application for secondary evidence, there has to be a opportunity to the parties for proving the existence and loss. The agreement to sell was misplaced in whitewash which is a sufficient foundation and can be explained, if an opportunity is given for proving existence and loss, therefore, there is no illegality and perversity in the order and prays for affirmation of the same.;