JUDGMENT
S.S. Saron, J.
1. Learned Counsel for the petitioner has produced the dasti notices regarding effecting of service on respondent No. 1. According to the same, respondent No. 1 has been served. However, despite service, no one has put in appearance on his behalf. He is, therefore, proceeded against ex parte.
2. This revision petition has been filed against the order dated 9.12.2004 passed by the learned Additional Civil Judge (Sr. Division) Sangrur, whereby defendants-respondents No. 2 to 4 have been granted permission to lead secondary evidence of an agreement to sell dated 13.6.1995.
3. The plaintiff-petitioner filed a suit for specific performance of the agreements to sell dated 20.6.1996, 15.11.1996 and 31.12.1996 executed by Inderjit Singh (defendant No. 1) in favour of the plaintiff with regard to land measuring 12 Bighas 13 Biswas, as detailed in the head note of the plaint, after setting aside the sale deeds dated 18.12.1996 executed by Inderjit Singh (defendant No. 1) in favour of Amarjit Singh (defendant No. 4) and Kulwinder Kaur (defendant No. 2) as also the sale deed dated 20.5.1997 executed by Inderjit Singh (defendant No. 1) in favour of Kulwinder Kaur and Tejinder Kaur (defendants No. 2 and 3) and in the alternative, suit for recovery of Rs. 3,80,000/- on account of refund of earnest money was prayed along with interest etc. In the written statement filed by Kulwinder Kaur and Tejinder Kaur (defendants No. 2 and 3), a stand was taken that there was an agreement of sale dated 13.6.1995 between them and Inderjit Singh (defendant No. 1) which had been misplaced from their house, The plaintiff-petitioner submitted an application dated 5.9.2000 for production of the said agreement of sale dated 13.6.1995. In response to that, the defendants stated that the said agreement of sale had been misplaced and therefore, it could not be produced in the Court. Accordingly, a prayer was made by the defendants for production of secondary evidence of the aforesaid agreement in terms of Section 65 of the Evidence Act, which has been allowed by the learned trial Court. The said order allowing the production of the said agreement of sale by way of secondary evidence is assailed by the plaintiff-petitioner.
4. Learned Counsel for the petitioner contends that the impugned order is absolutely erroneous inasmuch as the agreement dated 13.6.1995 on which defendants No. 2 and 3 have based their claim, has in all probability been prepared after the case had been filed. In fact, there is no mention of the agreement dated 13.6.1995 in the sale deeds dated 18.12.1996 and 20.5.1997 executed by Inderjit Singh (defendant No. 1) in favour of defendants No. 2 and 4 and defendants No. 2 and 3 respectively. Therefore, it is contended that when the original of the agreement to sell is not shown to exist, the question of its being misplaced or lost does not arise. The defendants-respondents in fact were liable to show as to how they procured the photocopy of the said agreement in the absence of the original being shown to have been lost or misplaced. The defendants-respondents, therefore, it is contended cannot be allowed to lead secondary evidence in respect of an agreement of which there is no original.
5. In response, learned Counsel for the respondents states that the agreement to sell dated 13.6.1995 had been misplaced by defendants No. 2 and 3 and they have undertaken to produce the same as and when the same is traced out. Besides, it is submitted that the question of admissibility is not to be decided in the application seeking permission to lead secondary evidence. As such, it is open to the plaintiff to argue on the admissibility of the document aforesaid at the appropriate stage, as has been observed by the trial Court in its impugned order dated 9.12.2004. Therefore, it is contended that the petition merits dismissal.
6. I have given my thoughtful consideration to the contentions raised by learned Counsel for the respective parties. In order to appreciate the same the provisions of Section 65(c) of the Evidence Act which provides for leading of secondary evidence when the original has been destroyed or lost may be noticed. The same reads as under:
65. Cases in which secondary evidence relating to documents may be given.-Secondary evidence may be given of the existence, condition or contents of a document in the following cases:
a to b. xxx xxx
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 to g. xxx xxx
In terms of the above, it is evident that the secondary evidence may be given of the existence, condition or contents of a document in the cases enumerated above. In terms of Clause (c) thereof it is provided that secondary evidence may be given 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. The principle underlying the provisions of Section 65 of the Evidence Act is that the best evidence that is available should be produced. The original document is always the best and primary evidence. Section 65 provides an alternative method of proving the contents of a document which for various reasons cannot be produced. However, it is liable to be shown that the original document of which secondary evidence is sought to be produced was in existence. Besides, secondary evidence is admissible when ft is shown that the primary evidence which is the original document was in existence. Therefore, before secondary evidence of a document can be led and proved, the original document and its loss is liable to be proved. In the case in hand, the existence of the document i.e. the agreement to sell dated 13.6.1995 has not been shown to exist or accounted for anywhere and it is only for the first time in the written statement dated 10.8,2000 that it has been stated by. defendants No. 2 and 3 that Inderjit Singh (defendant No. 1) had executed an agreement to sell dated 13.6.1995. The said agreement is also stated to be with the respective husbands of defendants No. 2 and 3 and not with the defendants No. 2 and 3 themselves. In fact, the stand taken by defendants No. 2 and 3 is that on 13.6.1995 i.e. the date of entering into the agreement of sale of land measuring 20 Bighas @ Rs. 40,000/- per Bigha the earnest money amounting to Rs. 5,49,000/- was received by Inderjit Singh (defendant No. 1) and an agreement to this effect was executed in favour of the husbands of the respective defendants No. 2 and 3. Therefore, if earnest money amounting to Rs. 5,49,000/- had been received on 13.6.1995 and that also in pursuance of the agreement, a mention of the same i.e. regarding existence of the agreement would have been there in the sale deed that was subsequently executed by Inderjit Singh (defendant No. 1) in favour of Kulwinder Kaur and Tejinder Kaur (defendants No. 2 and 3). Besides, there must be some other material to even otherwise show prima facie as to how the said amount of Rs. 5,49,000/- was raised on or some time before 13.6.1995 and how it was expended by Inderjit Singh (defendant No. 1). This Court in the case of Mangat Ram v. Prabhu Dayal and Ors. (2002-3) 132 P.L.R. 333 held that when document is lost, the applicant must show how he procured its photocopy which is produced. The said case was not a case where the documents were required to be kept in duplicate and in triplicate and the applicant having failed to prove as to how he arranged photocopy of the original document, the application for seeking permission to lead secondary evidence was dismissed. In Hari Singh v. Shish Ram and Ors. (2002-3) 132 P.L.R. 538, in a case where the applicant seeking permission to lead secondary evidence had failed to prove the existence of the document, it was held that before a party is permitted to adduce secondary evidence, it is a sine qua non for him to show that the document was in existence and despite notice, it has not been produced by the party in whose custody the document was kept.
7. In view of the aforesaid dictum of this Court and the failure of the defendants No. 2. and 3 to show the existence of the agreement dated 13.6.1995, the permission granted to lead secondary evidence by the learned trial Court was wholly improper. 8. In the circumstances, the revision petition is allowed and the impugned order dated 9.12.2004 passed by the learned trial Court is set aside. It is, however, made clear that any observation made in this order is only for the purpose of the disposal of the present petition and shall not be construed as an expression on the merits of the controversy between the parties and the trial Court shall consider the case of the parties on the basis of the evidence and material as adduced before it.