Prakash Tatia, J. - (1.) HEARD learned Counsel for the parties.
(2.) THE petitioner is aggrieved against the order dt. 26.08.2006 and the order dt. 09.08.2007 and therefore, preferred this writ petition because of the reason that issues involved in two applications, which were decided by the trial Court by two separate orders is inter -related. The petitioner's -defendant's application filed under Order 11 Rule 14 CPC was dismissed by the trial Court after observing that the defendant in his written statement did not give reference of the rent deed dt. 01.06.1986 and the plaintiff in his reply to the application stated that the rent deed in question was never executed. The petitioner's -defendant's application filed under Section 65 and 66 of the Evidence Act was dismissed by the trial Court vide order dt. 09.08.2007, which substantially in the light of the decision given dt. 26.08.2006. According to learned Counsel for the petitioner, the petitioner clearly stated in his written statement that the property in dispute was let out to him on 01.06.1986 for a consideration of Rs. 200/ -. He submitted Photostat copy of the rent deed dt. 01.06.1986 in the trial Court and its reference is in the order -sheet dt. 16.08.1996. The copy of the document was submitted by the defendant before issues were framed by the trial Court. The defendant prayed that since the document in original is in existence and is in possession of the plaintiff, therefore, plaintiff be directed to produce the document. The trial Court committed serious illegality by observing that since there is no reference of rent deed dt. 01.06.1986 in the written statement, therefore, the document, (which has been relied upon by the defendant by giving reference of the document in the list of document) cannot be summoned. The trial Court also committed serious error by accepting the statement of plaintiff that document is not in plaintiff's possession. It is submitted that defendant gave notice for production of the document to the plaintiff, which is Ex.10 and this application is supported by affidavit. When the plaintiff did not produce the document in question, then he is entitled to produce the Photostat copy of the document in the evidence as secondary evidence.
(3.) LEARNED Counsel for the respondent -plaintiff vehemently submitted that there is no illegality in the order passed by the Court below and the trial Court considered the facts of the case, which cannot be denied nor the defendant can deny the same. It is admitted case that there is no reference of the rent deed in the written statement and the document in question is fabricated and concocted document. The said document - rent deed has not been executed nor it contains the signature of the plaintiff.;