JUDGMENT Permod Kohli, J. (oral):- Petitioner has assailed the validity of the order dated 8.8.2006, passed by Additional Civil Judge (Senior Division), Rewari, whereby application of the petitioner for leading secondary evidence in respect to a compromise deed dated 17.9.1999 has been rejected. 2. It is not in dispute that in the suit filed by the petitioner­ plaintiff, he has referred to the document in question and also placed on record Xerox copy of the same. During the course of the trial, the petitioner made an application seeking leave or the Court to lead secondary evidence in respect to the alleged compromise deed dated 17.9.1999, on the plea that the original has been lost and not traceable. This application appears to have been resisted by other side as is evident from the reply filed by the defendants. The trial Court rejected the application on the ground that the document does not bear the date and also on the ground that the allegation that the original compromise deed is not traceable is quite vague. The trial Court has observed that the applicant has failed to show how the compromise deed was lost. Another reason recorded for declining the prayer is that the other side has denied the existence of the document. 3. I have heard learned counsel for the parties at length. 4. Section 65 of the Evidence Act permits the leading of secondary evidence under the circumstances enumerated therein, same is noticed hereunder:­ “65. Another reason recorded for declining the prayer is that the other side has denied the existence of the document. 3. I have heard learned counsel for the parties at length. 4. Section 65 of the Evidence Act permits the leading of secondary evidence under the circumstances enumerated therein, same is noticed hereunder:­ “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) when the original is shown or appears to be in the possession or power­ of the person 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 consists of numerous accounts or other documents which cannot conveniently be examained in Court, and the fact to be proved is the general result of the whole collection.” 5. One of the circumstance under clause (c) is loss of the original document. The copy of the document is already on record. The petitioner specifically pleaded that the original document has been lost. The circumstances under which it was lost and other related factors are all questions which can only be established once the applicant is allowed to lead secondary evidence in respect to the document in question. Learned counsel appearing for the respondent has referred to Akkam Laxmi Vs. The petitioner specifically pleaded that the original document has been lost. The circumstances under which it was lost and other related factors are all questions which can only be established once the applicant is allowed to lead secondary evidence in respect to the document in question. Learned counsel appearing for the respondent has referred to Akkam Laxmi Vs. Thosha Bhoomaiah and another, 2003(1) Civil Court Cases 452 (A.P.), Hira and another Vs. Smt. Gurbachan Kaur, 1988 (2) P.L.R. 17, Banarsi Dass Vs. Om Parkash and others,[2005 (a) Law Herald(P&H) 573] : 2005(2), P.L.R. 358, Bhagwan Sarup vs. Jagdish Kumar Jain, 2001 P. L.R. 858. Learned counsel has particularly, relied upon the judgment reported in Banarsi Dass Vs. Om Parkash and others, 2005(2)P.L.R. 358, wherein Co-ordinate Bench of this Court has observed that the applicant must first prove the loss of the document and to establish further as to why the photocopy was obtained if the duplicate of the document was not required to be maintained under any law. He has also referred to the other judgments, as noted above, indicating that the secondary evidence can be led under the circumstances enumerated in Section 65 of the Evidence Act. There is no dispute with regard to the proposition as referred to in the above judgments that the secondary evidence is permissible only when essential ingredients under Section 65 or the Evidence Act are proved. The question that needs consideration is whether the loss is to be proved first and then only leave is to be granted for secondary evidence. The counsel appearing for the petitioner has referred to Raj Kumar Vs. Daljit Kumar Punj and others, 1989 Civil Court Cases 10 (P&H), Indian Overseas Bank Vs. M/S. Shayama & Co. & others, 1993 Civil Court Cases 390 (P&H), Smt. Prem Lata Vs. Smt. Kamla Devi and others, [2006(2) Law Herald (P&H) 1151] : 2006(3) P.L.R. 150, Shangara Singh Vs. Jawala Singh 1993(1) P.L.R. 171, Raj Kumari Vs. Lal Chand, 1994(1) Civil Court Cases 477 (P&H), Smt. Sobha Raam Vs. Ravi Kumar and others, 1998(3) Civil Court Cases 637 (P&H) and Som Parkash Vs. Prabhati Lal 1991 (2) Recent Revenue Report 399 (P&H), delivered by the Co­ordinate Benches of this Court wherein it is held/observed that loss is not required to be proved in absolute terms. 6. Lal Chand, 1994(1) Civil Court Cases 477 (P&H), Smt. Sobha Raam Vs. Ravi Kumar and others, 1998(3) Civil Court Cases 637 (P&H) and Som Parkash Vs. Prabhati Lal 1991 (2) Recent Revenue Report 399 (P&H), delivered by the Co­ordinate Benches of this Court wherein it is held/observed that loss is not required to be proved in absolute terms. 6. After hearing learned counsel for the parties, I am of the view that to prove a document by way of primary or secondary evidence is a rule of evidence. Whether the party seeking leave of the Court to lead secondary evidence ultimately succeeds in proving the document or not is a question of fact and depends upon evidence. Petitioner has pleaded in the application the loss of original document. Under what circumstances document was lost is a question of fact and evidence. It is settled rule of pleadings that a party must disclose material facts and need not plead evidence. In the instant case material fact is loss of document and circumstances leading to loss is a question of evidence. This question can only be decided after providing opportunity to the party concerned to lead secondary evidence. To grant leave to lead secondary evidence does not mean the document is admitted in evidence nor it is a finding of the existence of any of the conditions indicated in Section 65 of the Evidence Act. It only amounts to holding an enquiry regarding existence of document and its loss under some circumstances. Failure or success to prove the existence of document or its loss can not be pre-determined that too without providing opportunity. Whether it is proved or not, is to be seen alter the leave is granted and the material/evidence produced, is evaluated. The question raised by learned counsel appearing for the respondent is premature at this stage. For the above reasons, impugned order is not sustainable and is liable to be set aside. I order accordingly. As a consequence, I allow the application of the petitioner to lead secondary evidence in respect to the compromise deed dated 17.9.1999. It is only after providing an opportunity to lead secondary evidence that the trial Court can form its opinion regarding existence of document and circumstances enumerated in Section 65 for secondary evidence. Thereafter, the Court has to say whether the document is proved in evidence or not. —————————————