Arun Bhansali, J. - (1.) This writ petition under Article 226 and 227 of the Constitution of India is directed against order dated 17.11.2014 passed by the trial court, whereby, the application filed by the petitioner under Section 65 of the Evidence Act, 1872 ('the Act') has been rejected by the trial court.
(2.) The petitioner filed a suit seeking specific performance of the contracts dated 30.04.1971 and 10.04.1996 pertaining to the land situated at Tehsil Sri Vijaynagar; during the pendency of the suit, an application under Section 65 of the Act was filed, inter alia, with the averments that the agreement dated 30.04.1971 was executed between Purkha Ram - husband of defendant No. 1 and father of defendant No. 2 in favour of Mukhtyar Singh - father of the plaintiff; the said agreement has been misplaced by him and despite a lot of efforts the same has not been found; photo copy is on the record, which the petitioner wants to exhibit as secondary evidence; exhibiting the said agreement dated 30.04.1971 is necessary; a reference to the said agreement dated 30.04.1971 has been made in the subsequent agreement dated 10.04.1996 and based on the agreement dated 30.04.1971, the proceedings for regularisation in plaintiff's favour took place and composition fees and interest was deposited; the regularisation has been done by Additional Collector, Suratgarh by order dated 10.09.2001; there is no possibility of the agreement dated 30.04.1971 being fraudulent or concocted; ultimately, it was prayed that the agreement be permitted to be exhibited by way of secondary evidence.
(3.) A reply to the application was filed by the respondents-defendants; it was contended that the agreement dated 30.04.1971 was incorrect and false; a document pertaining to the year 1971 was sought to be produced before the Court and was sought to be enforced after 44 years, which is not justified; the agreement is not clear and its writing cannot be understood and, therefore, the photo copy cannot be exhibited; the plaintiff has failed to indicate as to how and where the agreement dated 30.04.1971 was lost and whether any report was lodged in this regard and based on averments made in the application the photo copy cannot be exhibited; it was further contended that if in the agreement dated 10.04.1996 the earlier agreement dated 30.04.1971 has been confirmed, there was no reason to exhibit such an old unclear document; the document was not readable and was not a certified copy and such a unreadable document cannot be exhibited as its contents cannot be read and the signatures/thumb impressions are also not clear and, therefore, such old and unreadable document cannot be exhibited; ultimately, it was prayed that the application be dismissed.;