MISRA, J. - (1.) THIS revision petition is directed against the order dated 10. 5. 96 passed by the Civil Judge-cum-Judicial Magistrate, Jaipur in Civil Suit No. 337/94 wherein the question that falls for consideration is whether photocopy of a document whose original possibly could not have been in possession of the plaintiff and yet is vital to prove his plea, could be refused to be accepted on a technical plea that a photocopy of the document can be only in the nature of secondary evidence which could not be accepted as it is the only the document in original which can be treated as primary evidence which has been proved by the plaintiff. The aforesaid question arises under the following facts and circumstances:- the petitioner-herein was the plaintiff who had filed a suit on the averment that the disputed land measuring 15 biswas bearing Khasra No. 121 situated at Dhani Hemka Wali, village Natata is the joint property of the plaintiff/petitioners and the defendant/respondent No. 1 are co-sharers from a common ancestor. The plaintiff's case therein was that the land in question although fell into the joint share of the plaintiffs/petitioners and the defendant/respondent No. 1, the defendant/respondent No. 1 was denying the share to the plaintiff in the disputed land inspite of a family arrangement according to which the land was to be divided by constructing 12 shops out of which Shop No. 5 and 6 were to fall into the share of the plaintiff-petitioner. Inspite of this, the defendant-petitioner started interfering with this arrangement and executed a sale deed in favour of a third party due to which the suit had to be filed, but in order to prove his case, the plaintiff prayed that the sale deed be directed to be produced in evidence by the defendant-respondent and in case it is not produced, the plaintiff-petitioner be granted liberty to prove the agreement of sale by filing the photostat copy of the sale deed. The Court below has rejected the application stating therein the reason that since the plaintiff-petitioner failed to produce the copy of the agreement to sale in original, photocopy of the said document cannot be allowed to be taken on record.
(2.) CHALLENGING the aforesaid order it was submitted that the agreement of sale by the defendant-respondent was relied upon as a vital piece of evidence in order to prove interference of the defendant on the suit land and that document practically could not have been in possession of the plaintiff; at the most, the plaintiff could have been expected to produce photostat copy only since denial of permission to the plaintiff/petitioner in producing the document might seriously prejudice the case of the plaintiff since this was a material document on which the plaintiff is relying in support of his plea. Having heard the counsel for the parties, it clear transpires that the document which is sought to be produced by the plaintiff, although is merely a photo copy of the agreement to sale, that is evidently an important documentary evidence in his favour in support of his assertion that although partition did take place between the parties by virtue of a family arrangement, the manner in which the partition of the disputed property has been dealt with indicates that the respondent has failed to honour it by executing a sale deed in favour of a third party contrary to the family arrangement. It is thus apparent that the agreement of sale of the disputed property in favour of a third party which is relied upon by the defendant-respondent cannot possibly be found in possession of the plaintiff- petitioner and in this circumstance at the most he could procure the photostat copy only in order to prove his case. The counsel for the respondent however, took shelter of a technical argument in this regard and submitted that the plaintiff-petitioner having failed to produce primary evidence regarding existence of the agreement of sale, secondary evidence by way of furnishing photostat copy of the document could not have been permitted and therefore, it has rightly been rejected by the trial Court. It is no doubt true that in normal circumstances a document in original has to be treated as primary evidence in support of which secondary evidence only could have been allowed to be adduced by producing primary evidence but in the special facts and circumstances of a particular case, if the primary evidence is in the nature of any document which could not possibly have been in possession of the plaintiff and the facts further indicate that this document was vital, the burden of leading primary evidence in regard to that document could not lie on the plaintiff since he could possibly lead only secondary evidence which is the photocopy of the document executed by the defendant. Thus, although there can be no quarrel with the legal proposition that secondary evidence can be led only after primary evidence is led, it cannot be applied to a situation wherein denial to accept photo copy of the relevant document is bound to result into mis- carriage of justice and prejudice the case of a particular party. Therefore, this principle cannot be allowed to be applied mechanically by the Court below specially when it was disclosed that it was capable of affecting the specific pleading raised in the plaint. It is also equally true that the plaintiff/petitioner will have sufficient opportunity to prove his plea that the respondent has violated the family arrangement, but if filing of a document which is vital to prove this plea is denied on the basis of a technical plea resulting into mis-carriage of justice specially when it is prima facie proved that it has an important important bearing in support of the plea taken, its acceptance cannot be denied which is the position in the instant case.
(3.) UNDER the circumstances, the order of the trial Court is not fit to be sustained and hence, it is set aside with a direction to the Court below to accept the photostat copy of the agreement of sale, the genuineness and veracity of which will be put to test at the appropriate stage of the trial since defendant also will have sufficient opportunity to deny this documents. Hence, the trial Court is directed to accept the copy of the document which is a photo copy of the agreement of sale executed by the defendant respondent in favour of a third party. The revision petition accordingly stands allowed, but in the circumstances without costs. .;