RATHORE, J. - (1.) SINCE both the aforesaid writ petitions involve common question of law and facts, therefore, they are being decided by this common order.
(2.) THE petitioner plaintiff filed a suit for specific performance and permanent injunction on 22. 3. 2001. On 7. 3. 2003, the petitioner plaintiff filed an application under Section 65 of Evidence Act standing therein that the when he visited the Court on 21. 3. 2001, he was having original agreement to sale and during the course of meetings with the advocates, the original agreement to sale was lost in the court premises on 21. 3. 2001. THE petitioner immediately filed a complaint and also published the notice in the daily news paper Dainik Navjyoti and Rajasthan Patrika, Jaipur Edition dated 22. 3. 2001. The plaintiff had obtained photocopy of the aforesaid agreement on 28. 12. 2000, which was notarised and permission to produce secondary evidence of the aforesaid document was sought. The application was dismissed by the trial Court vide judgment dated 6. 1. 2005. Therefore, the present writ petition is preferred. Learned counsel for the petitioner referred Section 65 of Evidence Act which is reproduced hereunder:- Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:- (a) when the original is shown or appears to be in the possession of power of the persons against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it; (b) 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 his representative in interest; (c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time; (d) when the original is of such a nature as not to be easily movable; (e) when the original is a public document within the meaning of Section 74; (f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence; (g) when the originals consist of numerous accounts or other, documents which cannot conveniently be examined in Court and the fact to be proved is the general result of the whole collection. More particularly, he referred sub-section (c) of Section 65. As per sub-section (c), when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it it in reasonable time as secondary evidence. In support of his submissions, learned counsel for the petitioner placed reliance on the judgments reported in (2002) 95 WLC (Raj.) 762, 1997 (1) WLC (Raj.) 300.
(3.) PER contra, learned counsel appearing for the respondent defendants has empathetically denied the submissions made on behalf of the petitioner and submits that the petitioner has utterly failed to prove the correctness and genuineness of the original document, which is alleged to be lost during the visit of the petitioner plaintiff in the Court. The petitioner has utterly failed to adduce the evidence to this effect, therefore, the application has rightly been rejected by the trial court. In support of his submissions, learned counsel for the respondents placed reliance on the judgments reported in RLW 1998 (1) Raj. 683, RLR 1990 (1)339, 2005 (3) CCC 523 (P & H), 2006 (2) RDD 685, RLR 1990 (1) RLR 339 and 2006 (2) RDD 629. Heard rival submissions of the respective parties and perused the judgments referred by the parties. ;