Hon'ble TRIVEDI, J.—The present petition is filed by the petitioners-original defendants under Article 227 of the Constitution of India, challenging the order dated 8.2.05 passed by the Addl. District Judge (Fast Track) No.1, Alwar (hereinafter referred to as 'the trial curt') in Civil Suit No. 52/04 (31/93), whereby the trial court has allowed the application of the respondent NO.2-original plaintiff for leading secondary evidence in respect of the documents as prayed for by the plaintiff. With the consent of the learned counsels for the parties, the petition is decided finally at the admission stage, the same being pending since 2005. 2. The short question which falls for consideration before this court is as to when the party could be permitted to lead the secondary evidence under Section 65 of the Indian Evidence Act, 1872 (hereinafter referred to as 'the said Act'). 3. In order to appreciate the controversy involved in the petition, it would be beneficial to refer to the broad facts of the case put up by the parties before the trial court. The petitioners are the original defendants in the suit. The petitioner NO. 1 is the proprietary concern, of which the petitioner NO.2 is the proprietor. Originally, the suit was filed by the plaintiff Company named Raymonds Synthetics Ltd., which was subsequently substituted as Recrone Synthetics Ltd. during the pendency of the suit. The plaintiff has filed the suit against the petitioners-defendants before the trial court, seeking recovery of Rs. 10,56,323.14/- together with interest amount of Rs. 1,96,431.20/-. It has been alleged by the plaintiff in the plaint interalia that the defendants had undertaken certain job work for the erection of its plant, as per the terms and conditions contained in the letter and the work order given by the plaintiff. It appears that thereafter certain disputes arose between the parties and according to the plaintiff, the defendants did not carry out the work as per the agreed terms. Hence the suit for recovery of the amount to the extent of 1% of the contract amount was filed. It was stated in the plaint that the plaintiff would place reliance upon documents annexed with the plaint and that Shri P.K. Bhandari, General Manager/Secretary of the Company was fully conversant with the facts of the case and was authorised for the institution of the case and for leading the evidence. It was stated in the plaint that the plaintiff would place reliance upon documents annexed with the plaint and that Shri P.K. Bhandari, General Manager/Secretary of the Company was fully conversant with the facts of the case and was authorised for the institution of the case and for leading the evidence. The copy of the plaint has been annexed to the petition as Annex-1. The said suit has been contested by the petitioners-defendants by filing the written statement, denying the allegations and averments made in the plaint and further contending interalia that no amount as alleged was due against them. The copy of the written statement has been annexed by the petitioners as Annex.2 to the petition. 4. It further appears that the trial court settled the issues and the plaintiff examined Shri A.K. Pandey, Dy. General Manager of the plaintiff-company on 10.8.99. Thereafter the suit was adjourned from time to time for recording the evidence of other witnesses to be examined by the plaintiff, however, the plaintiff instead of examining the other witnesses, submitted an application under Order XIII, Rule 2 of CPC seeking permission to place on record certain copies of the documents. The trial court allowed the said application vide its order dated 6.5.03. The petitioners being aggrieved by the said order had filed the revision before this court, which was subsequently rejected on the ground of non-maintainability. The petitioners, therefore, filed a writ petition being No. 6499/03, against the said order dated 6.5.03 which came to be disposed of by this court vide the order dated 7.4.01, with the observations interalia that the documents which were filed alongwith the application under Order XIII Rule 2 CPC shall be exhibited subject to objections, and their admissibility will be decided at the time of decision of the suit. 5. The respondent-plaintiff thereafter was again granted time to lead further evidence however, no witness was examined, till the plaintiff moved an application under Section 65 of the said Act, seeking permission to lead secondary evidence in respect of the documents at serial NO 6 to 42 mentioned in the application earlier given by the plaintiff under Order XIII Rule 2 of CPC. The said application was resisted by the defendants by filing the reply. The said application was resisted by the defendants by filing the reply. The trial court vide the impugned order dated 8.2.05 allowed the said application of the respondent-plaintiff filed under Section 65 of the said Act permitting the plaintiff to lead secondary evidence as prayed for. Being aggrieved by the said order, the petitioners-defendants have filed the present petition invoking Article 227 of the Constitution of India. 6. It has been vehemently submitted by the learned senior counsel Mr. R.K. Mathur for the petitioners that the trial court had passed the impugned order in flagrant violation of the provisions contained in Section 65 of the Evidence Act and also in utter disregard of the order passed by the High Court in earlier petition arising out of the application filed by the respondent under Order XIII of CPC. According to Mr. Mathur, the application for leading secondary evidence under Section 65 of the said Act was not supported by any affidavit and was filed with the signature of Shri A.K. Pandey, as the power of attorney holder of the plaintiff-company Recrone Synthetics Ltd., though initially the suit was filed by the company named Raymonds Synthetics Ltd., in which it was stated that Mr. P.K. Bhandari, General Manager/Secretary was well conversant with the facts of the case and was authorised to file the plaint and lead the evidence. Mr. Mathur further submitted that the subsequently substituted company as plaintiff had not proved as to whether the documents in respect of which secondary evidence is sought to be led were in existence or not and how the originals of the said documents were lost or destroyed. Mr. Mathur also submitted that even if it is believed that the name of the plaintiff-company was changed, the office address has remained same and, therefore, the story put forth by the plaintiff that the originals were lost in transit is not believable. Mr. Mathur has placed heavy reliance on the decision of the Apex Court in case of J. Yashoda vs. K. Shobha Rani (2007) 5 SCC 730 in support of his submissions. 7. As against that, the learned counsel Mr. Mr. Mathur has placed heavy reliance on the decision of the Apex Court in case of J. Yashoda vs. K. Shobha Rani (2007) 5 SCC 730 in support of his submissions. 7. As against that, the learned counsel Mr. Ashish Sharma for the respondent-plaintiff company supporting the impugned order by the trial court submitted that the originals of the documents sought to be admitted in evidence as secondary evidence were lost in transit as stated in the application filed by the authorised person of the plaintiff-company and in view of the earlier order passed by the High Court, they were required to be permitted to be taken in evidence as secondary evidence. He also submitted that the impugned order passed by the trial court being legal and proper, this court exercising limited jurisdiction under Article 227 of the Constitution of India should not interfere with the same. 8. Before adverting to the issue involved in the petition, it is necessary to take note of Section 63 and 65 of the said Act, which pertain to the secondary evidence. Section 63 reads as under :- “63. Secondary evidence—Secondary evidence means and includes-- (1) Certified copies given under the provisions hereinafter contained; (2) Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies; (3) Copies made from or compared with the original; (4) Counterparts of documents as against the parties who did not execute them; (5) Oral accounts of the contents of a document given by some person who has himself seen it.” 9. Relevant part of section 65 of the said Act 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) ...... (b) ...... (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) ...... (e) ...... (f) ...... (g) ...... In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. ...... ...... ......” 10. (e) ...... (f) ...... (g) ...... In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. ...... ...... ......” 10. It cannot be gainsaid that the contents of the documents could be proved either by primary or by secondary evidence, however the documents must be proved by primary evidence except in the cases mentioned in Section 65 of the said Act. What is secondary evidence has been incorporated in Section 63 of the said Act. It is also settled proposition of law that only the best evidence should be produced by the parties, and that the secondary evidence could be given in absence of that best evidence which law requires to be given first, when a proper explanation of its absence is given by the party seeking permission to lead secondary evidence. From the bear reading of provisions of the said Act pertaining to the secondary evidence, it clearly transpires that before permitting the party to produce secondary evidence, it is necessary for the party to prove the existence and execution of the original documents. The conditions laid down in Section 65 of the said Act have to be complied with before the secondary evidence could be permitted. In this regard, a very pertinent observations made by the Apex Court in case of J. Yashoda vs. K. Shobha Rani (supra) are reproduced as under:- “7. Secondary evidence, as a general rule is admissible only in the absence of primary evidence. If the original itself is found to be inadmissible through failure of the party, who files it to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contents. 8. Essentially, secondary evidence is an evidence which may be given in the absence of that better evidence which law requires to be given first, when a proper explanation of its absence is given. The definition in Section 63 is exhaustive as the Section declares that secondary evidence "means and includes" and then follow the five kinds of secondary evidence. 9. Essentially, secondary evidence is an evidence which may be given in the absence of that better evidence which law requires to be given first, when a proper explanation of its absence is given. The definition in Section 63 is exhaustive as the Section declares that secondary evidence "means and includes" and then follow the five kinds of secondary evidence. 9. The rule which is the most universal, namely that the best evidence the nature of the case will admit shall be produced, decides this objection that rule only means that, so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it. Section 65 deals with the proof of the contents of the documents tendered in evidence. In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. Under Section 64, documents are to be proved by primary evidence. Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said Section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the Section.” 11. In a recent decision in case of H. Siddiqui vs. A. Ramalingam, AIR 2011 SC, 1492, the Apex Court observed as under :- “10. Provisions of Section 65 of the Act 1872 provide for permitting the parties to adduce secondary evidence. However, such a course is subject to a large number of limitations. In a case where original documents are not produced at any time, nor, any factual foundation has been led for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law. The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. (Vide: The Roman Catholilc Mission & Anr. vs. The State of Madras & Anr., AIR 1966 SC 1457 ; State of Rajasthan & Ors. vs. Khemraj & Ors., AIR 2000 SC 1759 ; Life Insurance Corporation of India & Anr. vs. Ram Pal Singh Bisen, (2010) 4 SCC 491 : (2010 AIR SCW 1900); and M. Chandra vs. M. Thangamuthu & Anr., (2010) 9 SCC 712 ):( AIR 2011 SC 146 ).” 12. So far as the facts of the present case are concerned, it appears that the copies of the documents sought to be relied upon were not produced by the respondent-plaintiff alongwith the plaint at the time of the institution of the suit, nor the same were produced till the issues were settled by the trial court. The application under Order XIII of CPC for the production of the copies of the said documents was filed by the plaintiff in the year 2003, after the examination of one witness Shri A.K. Pandey on 10.8.99. Apart from the fact that under Order XIII Rule 1 of CPC, the parties are required to produce on or before the settlement of the issues, the documentary evidence in original, where the copies thereof have been filed alongwith the plaint or written statement, the respondent-plaintiff had not made any application for the production of original documents till the settlement of issues and till one witness was examined by it. There was also no application filed, supported by any affidavit to the effect that the originals of the documents mentioned in the application filed under Order XIII Rule 2 of CPC were in existence and were lost or destroyed in the office of the plaintiff. Even the application seeking permission to lead secondary evidence under Section 65 of the said Act in respect of the said documents, does not appear to be filed on affidavit by the authorised person of the respondent-plaintiff company. Even the application seeking permission to lead secondary evidence under Section 65 of the said Act in respect of the said documents, does not appear to be filed on affidavit by the authorised person of the respondent-plaintiff company. Under the circumstances the very existence of the original documents, in respect of which permission to lead secondary evidence is sought, has not been proved by the respondent in order to avail the benefit of Section 65 of the said Act. 13. The respondent has also not examined any witness nor filed the requisite affidavit of the person, who was well conversant with the facts of the case at the time of the institution of the suit, to prove that the said documents were in fact in existence and that they have been lost or destroyed, as alleged. Under the circumstances, in absence of a proper explanation for not leading the best evidence and in absence of any evidence regarding the existence of the original documents, and regarding loss of such documents, permission to lead secondary evidence in respect of said documents cannot be granted. As such, because the very existence of the original documents has not been proved by the respondent-plaintiff, the copies of documents in question also could not be said to be the copies made from the originals, as contemplated under Section 63(3) of the said Act and, therefore, the secondary evidence with regard to the said copies of documents also could not be permitted to be given under Section 65 of the said Act. 14. In view of the above, the trial court has materially erred in law in permitting the respondent-plaintiff to lead the secondary evidence in respect of the documents in question by passing the impugned order. The impugned order being illegal, the same deserves to be set aside, and is accordingly set aside. The writ petition stands allowed accordingly.