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2. Brief facts of the case are as such that the petitioner had preferred a Special Civil Suit No.14/2009 against the respondents before the Learned Principle Senior Civil Judge, Gondal praying for specific performance of agreement to sell dated 11/10/2005 for the immovable properties mentioned in the plaint (Exh-1) for a total consideration of Rs.25,00,000/-. The petitioner paid an earnest money of Rs.2,00,000/- to the Respondent no. 1 through a cheque drawn on R.C.C. Bank bearing no. 86325 dated 05/10/2005. The petitioner filed an affidavit in examination-in-chief dated 19/07/2019 below exh-75 stating in detail factual narration and referring to the documentary evidences produced. It is stated on oath that original agreement to sell dated 11/10/2005 is not produced as such agreement to sell along with other documents were lost between Yagnik Road to Jubilee Chowk and the said incident of original documents NEUTRAL CITATION C/SCA/8810/2021 JUDGMENT DATED: 21/03/2024 undefined getting lost were advertised by the petitioner in daily newspaper 'Akila' on 20/02/2009. The petitioner preferred an application dated 19/07/2019 below exh-76 to exhibit certain documents as mentioned in the said application, which are only marked and not exhibited. In the said application, it is again factually narrated as to why certain documents are produced by way of secondary evidence against primary evidence. However, the trail court by order dated 12/03/2021 below exh-76 refused to exhibit documents marked as 74/1, 74/2, 74/3, 74/13, 74/33, 74/34, 74/38, 74/39 and allowed other documents being marked as 74/4 to 74/12 and 74/14 to 74/32 along with 74/35 to 74/37 to be exhibited subject to proving of such documents. Hence, the present petition is preferred.

3. Heard Mr. Mihir Joshi, the learned senior counsel assisted by Mr. Saurabh G. Amin, the learned counsel for the petitioner and Mr. Vimal Patel, the learned counsel appearing for VMP Legal for the respondents. 4.1 Mr. Mihir Joshi, the learned senior counsel for the petitioner has submitted that the impugned order dated 12.03.2021 is contrary to law, equity and evidence on NEUTRAL CITATION C/SCA/8810/2021 JUDGMENT DATED: 21/03/2024 undefined record and the trial court has committed gross and palpable error of law. Furthermore, he has submitted that the trial court has wrongly interpreted S. 65 of the Indian Evidence Act and 07 R. 14 of the Code of Civil Procedure. The trail court ought to have exhibited the document marked with 74/1 and admitted the said evidence as secondary evidence by virtue of Section 65(c). It is stated in the application that the originals of the same was lost. The applicant has produced vide mark 74/1 a photocopy of the original, which has been compared and notarized and it has been recorded in his book at Sr.No. 2075 pg 68. Thus the said document is a photcopy prepared by know mechanical means which itself insures accuracy of the copy. Furthermore, he has submitted that the trial court has failed to give any reason for not exhibiting the other documents and thus the order is not a reasoned order and amounts to breach of principles of natural justice. Furthermore, he has submitted that trial court ought to have admitted the documents marked with 74/2, 74/3 as 'Exhibit' as the said documents are original and hence, amounts to primary evidence by virtue of Section 62 of the Indian Evidence Act. Document at mark 74/2 is the original NEUTRAL CITATION C/SCA/8810/2021 JUDGMENT DATED: 21/03/2024 undefined newspaper advertisement published in Akila newspaper on 20.02.2009 wherein it is declared that original Saudachithi/agreement to sale is lost and document at Exh. 74/3 is the original bill for publishing the said advertisement issued by M/s. Simple Ad. & Commu. Furthermore, he has submitted that the trial court ought to have admitted and exhibited the documents marked 74/13 as the said document is a 'proposed public notice' for the property in question, it is prepared on the basis of instruction given by the petitioner and respondents and such document bears signature of the 3 respondents. The petitioner has produced a photocopy of the original which has been compared and certified as "True Copy" of the original by Notary Public Shri H. Н. Patel on. Patel on 20.04.2007 and it has been recorded in his book at Sr. no. 2076 pg. 68. Thus the said document is a photocopy prepared by known mechanical means which itself insures accuracy of the copy. The trial court ought to have exhibited and admitted the documents marked with 74/33 & 74/34 as the document at Mark 74/33 a office copy of query list prepared by petitioner's Advocate Devmurari and was given to the respondents to submit the documents mentioned therein for examination of the NEUTRAL CITATION C/SCA/8810/2021 JUDGMENT DATED: 21/03/2024 undefined title and document marked with 74/34 are the photocopy of title document given by the respondents to the petitioner. Hence, the trial court has erred by not exhibiting document produced at Mark 74/38 and the trail court has erred in considering it as a photocopy whereas he said document is an original bank account statement issued by The Rajkot Commercial Co-op bank and bears the seal of the bank and is signed by its Manager and has erred by not exhibiting document produced at mark 74/39 without assigning any reason. The said document is an account statement of the petitioner, which shows monthly summary of amount in his bank statement. Furthermore, he has submitted that the trial court has committed grave error of law by misinterpreting Order 7 Rule 14. Furthermore, he has submitted that the petitioner has attached all the necessary and relevant documents on which he relies upon to sue the respondents by a list of documents such as certified copy of agreement to sell dated 11/10/2005, original copy of 'Akila' newspaper dated 20/02/2009, original bill receipt dated 21/03/2009 of advertisement stating original documents lost in 'Akila' newspaper, original/certified copy of proposed public notice, office NEUTRAL CITATION C/SCA/8810/2021 JUDGMENT DATED: 21/03/2024 undefined copy of query list of Advocate Devmurari and certified copy of Utrotar Title deeds along with other documentary evidence with the plaint. Hence, the petitioner clearly complied with the ingredients of Order 7 Rule 14. Furthermore, he has submitted that the trial court ought to have considered recent decision of Hon'ble Supreme Court which has reiterated time and again that secondary evidence can be produced provided that parties establishes factual foundation for non-production of original documents. Hence, he has submitted that the impugned order dated 12.03.2021 is illegal, contrary to law and equity, amounts to wrong exercise of discretion, perverse, palpable error resulting into immense and irreparable hardship to the petitioner and hence, it needs to be quashed and set aside.

4.2 In support of his submissions, he has relied upon he judgment of the Hon'ble Apex Court in the case of (i) Dhanpat vs. Sheo Ram (deceased) through Legal Representatives and Others reported in (2020) 16 SCC 209, more particularly, paragraphs 22 to 25 are relevant,

(ii) Jagmail Singh vs Karamjit Singh reported in (2020) 5 SCC 178, more particularly, paragraphs 9, 11, 13 to NEUTRAL CITATION C/SCA/8810/2021 JUDGMENT DATED: 21/03/2024 undefined 16 are relevant, and (iii) Bipin Shantilal Panchal vs State of Gujarat & Anr. reported in (2001) 3 SCC 1, more particularly, paragraphs 13 to 16 are relevant. 5.1 Mr. Vimal Patel, the learned counsel appearing for VMP Legal for the respondents has strongly opposed the averments made and the contentions raised in toto except those, which are specifically admitted by the respondent No.1 to be true herein. Furthermore, he has submitted that the petitioner has not come with clean hands and suppressed material facts and at the same time has pleaded the list of documents at Pg. No. 18 of the petition as if that the said list of document was produced along with the plaint at the time of institution of Special Civil Suit No.14 of 2009. I from the record of the suit state that Special Civil Suit No.14 of 2009 was presented on 24.02.2009 along with list of documents dated 24/02/2009 at Exh. 4 consisting of 21 documents. The petitioner has not produced the said list of documents with the petition. Furthermore, he has submitted that at the time of the institution of the suit, the petitioner had not produced the original of alleged Sodachithi dated 11.10.2005 as well as original of alleged NEUTRAL CITATION C/SCA/8810/2021 JUDGMENT DATED: 21/03/2024 undefined proposed public notice. From the said list, it can be seen that only the photocopy of such documents were filed along with the suit. The plaintiff in the suit has not disclosed the fact that such documents are not in his power or possession nor it is disclosed that such documents are lost. Furthermore, he has submitted that the suit was opposed by respondent no.1 by filing written statement dated 13/03/2009 at Exh. 7 by pointing out that no such alleged Sodachithi was ever entered into or executed or was in existence and denied the alleged signature in the alleged Soda Chithi and alleged proposed paper notice. Further, the alleged documents were never in existence and, therefore, there was no question of such documents being true copy by a notary on 20/04/2007. Furthermore, he has submitted that in view of the above, the respondent no.1 gave an application dated 16/03/2009 at Exh. 8 under Order 7, Rule 14 calling upon the petitioner to produce the original of above both the documents and to disclose if such document is not in power and possession of the petitioner. The said application was opposed by the petitioner by filing reply dated 08/04/2009 at Exh. 19 contending that it is not necessary to produce original of NEUTRAL CITATION C/SCA/8810/2021 JUDGMENT DATED: 21/03/2024 undefined documents as photocopy of the same are produced by the petitioner. Furthermore, he has submitted that the respondent no. 1 submitted written arguments dated 22/08/2012 at Exh. 28 which does not give any reason for non production of the originals of these documents. Furthermore, he has submitted that the petitioner also filed written arguments dated 05/09/2012 at Exh. 36 pointing out that the petitioner has produced the photocopy of the document and that the petitioner has declared that the original is in possession of the petitioner and requested to reject the application and the trial court by an order dated 28.02.2014 rejected the application at Exh.8 on the ground that these documents can be produced at the time of evidence since the copy of the document is produced. Therefore, he has submitted that at no point of time, the petitioner has laid foundation to the fact that the original of the above documents was in his power and possession or that the said documents were lost. Furthermore, he has submitted that the petitioner gave list of documents dated 19/07/2019 at Exh. 74 producing 39 documents with a note that these documents are produced vide list of documents at Exh. 4 and the petitioner had produced NEUTRAL CITATION C/SCA/8810/2021 JUDGMENT DATED: 21/03/2024 undefined photocopy of 21 documents vide list of documents at Exh. 4. Even in the said list, the petitioner has not produced original of the alleged Sauda Chithi dated 11/10/2005 and original of the alleged proposed public notice which were produced again as alleged true copy vide mark 74/1 and 74/13. Furthermore, he has submitted that the petitioner in the examination in chief dated 19/07/2019 for the first time stated that the folder consisting of the alleged Sauda Chitthi at Mark 74/1 was lost between Yagnik Road and Jubilee Chowk for which alleged public notice dated 20/02/2009 was given. However no such facts were disclosed either in the plaint filed by the petitioner nor in response to the reply dated 08/04/2009 at Exh. 19 filed by the petitioner opposing the application filed by the respondent no.1 seeking production of original of these documents. 5.2 Furthermore, he has submitted that in fact, in the written arguments dated 05/09/2012 at Exh. 36, it is stated by the petitioner that the petitioner has already declared that the possession of original of the documents is with the petitioner. Therefore the original of the document was in the possession of the petitioner NEUTRAL CITATION C/SCA/8810/2021 JUDGMENT DATED: 21/03/2024 undefined otherwise the same would not have been stated in the written arguments dated 05/09/2012. Hence it cannot be believed as stated in the affidavit of examination in chief that document was lost on 20/02/2009. Furthermore, he has submitted that the suit was presented on 24/02/2009 by the petitioner wherein also the petitioner has not stated that the document was lost on 20/02/2009 and that the alleged public notice dated 20/02/2009 was given in newspaper "AKILA". Furthermore, he has submitted that the petitioner is deliberately withholding and not producing the original of the document as the petitioner very well knows that the respondents have never signed any such document and if the original is produced then the same would be sent to the hand writing expert for verifying the genuineness of signature, which the petitioner would fail to prove. It is under these circumstances that the petitioner has come out with concocted story that the original is lost and in absence thereof the petitioner may be permitted to produce the true copy by way of secondary evidence. Furthermore, he has submitted that the onus is on the petitioner to prove that the alleged Sauda Chithi dated 11/10/2005 was in existence and that it bears the genuine signature NEUTRAL CITATION C/SCA/8810/2021 JUDGMENT DATED: 21/03/2024 undefined of the respondents upon the said alleged Sauda Chithi as well as the alleged proposed public notice. Even if one compares the photocopy of both documents then the signature in both documents are exactly verbatim without any difference in space which even if a person who signs two separate original signature would not be in a position to sign with exact verbatim. Therefore, the petitioner has failed to produce the superior evidence which is in the possession of the petitioner as it was never the case of petitioner that the alleged document was lost. Hence, he has submitted that the condition laid down to lead secondary evidence under Section 65 of Evidence Act is not fulfilled.

13. In the matter of Rakesh Mohindra vs. Anita Beri and Ors. this Court has observed as under:-

"15. The preconditions for leading secondary evidence are that such original documents could not be produced by the party relying upon such documents in spite of best efforts, unable to produce the same which is beyond their control. The party sought to produce secondary evidence must establish for the non-production of primary evidence. Unless, it is established that the original documents is lost or destroyed or is being deliberately withheld by the party in respect of that document sought to be used, secondary evidence in respect of that document cannot accepted."