Bela M. Trivedi, J. - (1.) THE present petition has been filed by the petitioners, challenging the order dt. 18.10.2013 passed by the Additional Civil Judge (Junior Division) & Metropolitan Magistrate No. 26, Jaipur City, Jaipur (Sanganer) [hereinafter referred to as 'the trial Court'] in Civil Suit No. 121 of 2007, whereby the trial Court has dismissed the application of the petitioners filed under Sec. 65 of the Evidence Act. It is submitted by the learned counsel Mr. P.C. Sharma for the petitioners that there was a dispute with regard to the plot allotted by the respondent No. 4 -Society to the respondent No. 2, which according to the petitioners, was part of Khasra No. 1059, acquired for the petitioners along with the other lands. He further submitted that the petitioners had requested the Tehsildar to issue necessary certificate for the report of demarcation dt. 30.08.2008, copy of which was produced by the petitioners before the trial Court. However, the record of the said proceedings being not available in the office of the Tehsildar, the concerned Tehsildar had issued the certificate that the record of the concerned file was not traceable, though searched for, and therefore it was not possible to issue the certified copy of the said demarcation report. He therefore submitted that the trial Court should have allowed the application of the petitioners for exhibiting the said document treating it to be secondary evidence under Sec. 65 of the Evidence Act.
(2.) HOWEVER , the learned counsel Mr. P.C. Sharma for the respondent No. 2 has submitted that the application was given by the petitioners -defendants at the fag end of the suit, when the evidence was already over. He also submitted that the petitioners had not followed the procedure as contemplated under Sec. 65 of the Evidence Act, and therefore the trial Court has rightly dismissed the application. Having regard to the submissions made by the learned counsels for the parties, and to the impugned order passed by the trial Court, it appears that the petitioners had sought to produce a photostat copy of the report of demarcation dt. 30.08.2008 prepared by the office of the Tehsildar, and requested the Court to exhibit the same treating it to be the secondary evidence, on the ground that the original record being not available in the said office of Tehsildar, it was not possible for the petitioners to produce the certified copy thereof. It also appears that the petitioners had produced the reply given by the Tehsildar in response to the application made by the petitioners, to the effect that the original record of the concerned file was not traceable, and therefore it was not possible to issue the certified copy of the said document. Since the petitioners have not examined the concerned Tehsildar in support of his documents in question, the learned counsel Mr. P.C. Sharma for the petitioners submits that he may be permitted to examine him.
(3.) IN view of the said statement made by the learned counsel for the petitioners, it is directed that it will be open for the petitioners to file the necessary application requesting the trial Court to examine the concerned Tehsildar in respect of the secondary evidence pertaining to the demarcation report dt 30.08.2008, within a period of one week from today, and the trial Court shall decide the said application in accordance with law without being influenced by the observations made by it in the impugned order. With these directions, the writ petition is disposed of.;