- (1.) THE petitioners -plaintiffs have filed the present petition, challenging the order dated 16.12.2011 and the order dated 18.02.2015 passed by the Additional District & Sessions Judge (Fast Track) No.3, Jaipur City, Jaipur (hereinafter referred to as "the trial court") in Civil Suit No.151/2008.
(2.) AFTER having heard the learned counsels for the parties, it appears that the petitioners -plaintiffs have filed the suit against the respondents -defendants seeking cancellation of an undated agreement. It has been alleged that the petitioners had not executed any such agreement for selling the agriculture lands in question to the respondent No.3, who happened to be the relative of the petitioners -plaintiffs, and the respondent No.3 was misusing the said document.
(3.) THE respondents -defendants have filed the written statement and also the counter claim in the said suit seeking specific performance of the very agreement for which the plaintiffs has sought cancellation. It appears that when the petitioners -plaintiffs filed application under Section 65 of the Evidence Act for leading secondary evidence in respect of the said agreement, the respondents filed the reply admitting that the original of the said agreement was with them, however was not traceable, and that the same would be produced in the court as and when found. It further appears that during the course of arguments before the trial court, in respect of the application filed by the petitioners -plaintiffs for leading secondary evidence under Section 65 of the Evidence Act, it was sought to be submitted by the learned counsel for the respondents -defendants that copy of the said agreement was fabricated and forged. Relying upon such submissions, the trial court has dismissed the application of the petitioners and also the review application filed by them vide the impugned orders. Being aggrieved by the same, the present petition has been filed. Learned counsel Mr. Kamlesh Pareek for the petitioners submits that the impugned order passed by the trial court is exfacie illegal inasmuch as the respondents -defendants themselves had relied upon the agreement in question and admitted that the original of the said agreement was with them. Hence, the petitioners should be either permitted to lead secondary evidence or the court should exhibit the copy of the said agreement, the original of which was with the respondents. However, the learned counsel Mr. Anil Sharma for the respondents submits that the photo copy of the agreement being fabricated, and not being duly stamped could not be made admissible in evidence. He has relied upon the decision of this Court in case of Jagdish Prasad and Ors. Versus Parshu Ram and Anr.,2013 1 WLC(Raj) 696.;