B. R. ARORA, J. - (1.) THIS revision is directed against the order dated 17th January 1989 passed by Additional Civil Judge cum Addl. Chief Judicial Magistrate Jodhpur by which the Additional Civil Judge Jodhpur rejected the application of the plaintiff filed under Section 65 of the Evidence Act for taking the secondary evidence.
(2.) BRIEF facts of the case are that the plaintiff petitioner filed a suit for the recovery of Rs. 4000/- against the defendant. Along with the plaint a photostat copy of the Khata of the defendant which was signed by the defendant was also filed. The Khata is dated 27th of October, 1931, Which was entered in the Bahi of the plaintiff. It is allowed that this photostat copy of the Khata which was signed by the petitioner was filed in the Court but could be compared with the original Bahi. The original Bahi was handed over to Shri Omprakash Soni Advocate and later on the counsel was changed. On 2nd of August, 1988, the plaintiff filed an application under section 58 of the Evidence Act stating therein that along with the plaint, the plaintiff filed a photostat copy of the account of the defendant which was signed by the defendant and the defendant has neither admitted it nor denied it and nothing specific was said in the reply and no issues yet has been framed, but the original Bahi which contained the account of the petitioner had been lost and, therefore, it was prayed that the plaintiff may be allowed to lead secondary evidence to prove the Khata. This application was supported by an affidavit of Shri Rajmal in which it has been alleged that the Bahi is not traceable inspite of the best efforts of the plaintiff and it appears that it has been lost. It has been further alleged in the affidavit that this Bahi was given to the counsel for comparing purposes but it is not traceable after that. This application was opposed by the defendant and the defendant filed reply to this application. The learned Additional Civil Judge by his order dated 17. 01. 1989, rejected the application and refused to allow the additional evidence, as according to the learned Additional Civil Judge neither the affidavit of the counsel to whom the Bahi was handed over has been filed, nor it has been specifically alleged regarding the final stage of the Bahi and it has also not been stated that whether it has been lost or not. I have looked into the judgment passed by the learned lower court. According to section 65 of the Indian Evidence Act that the secondary evidence can be allowed to be produced if it is shown that the original document has been lost or destroyed. The secondary evidence can be allowed to be produced to prove the document which is lost or otherwise not available. Section 65 (a) of the Indian Evidence Act provides that secondary evidence may be given of the existence, condition, or contents of a document when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by the representative with interest. In the present case, in para 5 of the plaint, it was specifically alleged that the plaintiff firm sent polyester cloth valuing Rs. 7600/- to the defendant out of which defendant paid Rs. 4000/- and Rs. 3600/- remained outstanding and the payment of Rs. 200/- was afterwards made which was also deposited in the account and thus Rs. 3400/- remained outstanding and no payment of this amount has been made inspite of repeated demands. In the written statement, it has been allowed by the defendant that the whole amount of Rs. 5000/-was paid and Rs. 200/- remained outstanding and after the payment of Rs. 200/- to Ghanshyamdas the account was cleared. Though the defendant has denied' the liability of payment of Rs. 3400/- but the execution of the Khata has not been denied. In this view of the matter in my opinion, the learned lower court was not justified in rejecting the application under section 65 of the Evidence Act filed by the plaintiff and the learned lower court has committed a material illegality and irregularity in exercise of its jurisdiction. The result is that the revision petition is allowed. The order dated 17th of January, 1989 passed by the Additional Civil Judge, Jodhpur is set aside and the plaintiff is allowed to lead secondary evidence to prove khata on the costs of Rs. 200/ -. .;