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This CRP is filed against the order dated 04-02-2015 in I.A.No.13 of 2015 in O.S.No.26 of 2009, wherein and whereby the application filed by the respondent/plaintiff under Section 65 (c) of Indian Evidence Act (for short "the Act") seeking permission for leading secondary evidence in respect of possessory agreement of sale dated 23-05-2005 is allowed.

Sri Kowturu Pavan Kumar, learned counsel representing Sri Kowturu Vinaya Kumar, learned counsel for the petitioner submits that the trial Court came to erroneous conclusion that the respondents/plaintiffs satisfied the conditions laid down in Section 65 (c) of the Act and allowed the application for leading the secondary evidence in respect of possessory agreement of sale dated 23-05-2005. He also submits that the petitioner herein filed O.S.No.11 of 2017 for grant of injunction and the 1st plaintiff in the present suit filed counter and there also original of document in question is not filed and said possessory agreement of sale has never seen the light of the day and it has not been produced before any authority and the respondents/plaintiffs have not laid any actual foundation that said document is lost and they have also not proved that the same is executed by the petitioner and the petitioner has denied the execution of the said document in the written statement. As such, the trial Court erroneously allowed 3 ARR,J crp_1021_2015 the application. In support of his contentions, learned counsel relied on the judgment of Supreme Court in U.Sree v. U.Srinivas1.

Counter affidavit is filed by the petitioner herein in the said I.A. disputing the execution of the sale deed.

The respondents/plaintiffs in order to lay factual foundation regarding the execution of the said document and also to show that the same is lost, examined PW.1 who is plaintiff No.4, who stated about execution of said document and how it was lost and giving of police complaint etc., PW.2, who is the attestor of possessory agreement of sale, dated 23-05-2005, who categorically deposed that Ex.A.7 possessory agreement of sale dated 23-05- 2005 is executed in his presence and PW.3, who is the document writer deposed that Ex.A.7 was executed in his presence and witnesses signed. PW.6 who is said to have attested the Xerox copy of the original possessory agreement of sale also deposed that he attested the same after seeing the original, which goes to show 6 ARR,J crp_1021_2015 that the respondents/plaintiffs laid the foundation to show that the document was executed. In view of pleadings and evidence led, this Court is of the opinion that the respondents/plaintiffs have fulfilled the conditions laid down under Section 65 (c) of the Act for leading secondary evidence.

Section 65(c) of the Act 1872 provides that secondary evidence can be adduced relating to a document 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 court is obliged to examine the probative value of documents produced in court or their contents and decide the question of admissibility of a document in secondary evidence. However, the secondary evidence of an ordinary document is admissible only and only when the party desirous of admitting it has proved before the court that it was not in his possession or control of it and further, that he has done what could be done to procure the production of it. Thus, the party has to account for the non-production in one of the ways indicated in the section. The party further has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. When the party gives in evidence a certified copy/secondary evidence without proving the circumstances entitling him to give secondary evidence, the opposite party must raise an objection at the time of admission. In case, an objection is not raised at that point of time, it is precluded from being raised at a belated stage. Further, mere admission of a document in evidence does not amount to its proof. Nor, mere marking of exhibit on a document does not dispense 7 ARR,J crp_1021_2015 with its proof, which is otherwise required to be done in accordance with law vide Kaliya v. State of Madhya Pradesh. ((Vide: H. Siddiqui (dead) by Lrs. v. A. Ramalingam, AIR 2011 SC 1492; and Rasiklal Manikchand Dhariwal & Anr. v. M.S.S. Food Products, (2012) 2 SCC 196), The Roman Catholic Mission v. The State of Madras, AIR 1966 SC 1457; Marwari Khumhar & Ors. v. Bhagwanpuri Guru Ganeshpuri & Anr., AIR 2000 SC 2629; R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P. Temple & Anr., AIR 2003 SC 4548; Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082; and Life Insurance Corporation of India & Anr. v. Rampal Singh Bisen, (2010) 4 SCC 491).

In the normal course, unless some motive is suggested to the party proposing to adduce secondary evidence to the effect that he made an application to adduce secondary evidence on false grounds, normally he can be permitted to lead secondary evidence. A bare statement made on affidavit by a party would be sufficient proof of fact that the document has been lost or not traced out. There can never be an absolute proof of fact that the document had in fact been lost. A statement of the person that the document was lost and in spite of his best efforts he could not trace out the document would be sufficient evidence of the fact that the document had been lost. (Ramakrishna Constructions, Karimnagar v. Singareni Collieries Co. Ltd., Warangal) In the judgment of Smt.Sattamma v. Ch.Bhikshapati Goud alias Ch.Bhupal Goud (6 supra ), this Court held in Para No. 23 as under: