ORDER 1.By invoking the jurisdiction of this Court under Article 227 of the Constitution, the petitioner-Gwalior Development Authority (GDA) has assailed the order dated 17.12.2012. By the said order, the application preferred by the petitioner/defendant No. 1 under section 65 of the Evidence Act is rejected by the Court below. 2. Brief facts necessary for adjudication of this matter are as under:- The respondent No. 1- plaintiff filed a civil suit for declaration and permanent injunction on the ground that Survery No. 788 area 0.108 hectare situated in village Shankarpur, Tahsil and District Gwalior, is purchased by him through a registered sale deed dated 1.7.2009 from respondent No. 2- Housing Society. Mutation has been done in revenue record. The land in question is an agricultural land. It is the case of the plaintiff that on 26.6.09 a Sub-Engineer of GDA threatened him for dispossession on the ground that the land in question is acquired by GDA by way of agreement dated 12.6.1998. The stand of GDA before the Court below is that the land in question is a part of valuable notified scheme of Transport Nagar and in view of section 53 of Nagar Tatha Gram Nivesh Adhiniyam, 1973 ( for brevity, the ‘Adhiniyam’), any sale subsequently done by respondent No. 2 is void ab initio and a nullity in the eyes of law. It is further stated by GDA that possession of the land in question was taken over by them on 2.12.1998 from respondent No. 2 Society. The scheme needs to be implemented as per section 56 of the Adhiniyam. Learned trial Court framed four issues after completion of pleadings. The plaintiff, thereafter submitted his affidavit under Order 18 Rule 4 CPC. The GDA cross-examined the plaintiff/respondent No. 1 and its witnesses. The matter was then fixed for defendant evidence. An affidavit under Order 18 Rule 4 CPC with relevant documents was filed by GDA. The documents include agreement dated 12.6.1998. possession receipt, order dated 2.12.1998, allotment order dated 22.8.2000, final layout plan of the scheme in question and copy of FIR dated 21.8.2000. The documents filed along with aforesaid affidavit by GDA are photocopies. Accordingly, GDA preferred an application under section 65 of the Evidence Act (Annexure P4) with a prayer that the said photocopies may be taken in evidence as secondary evidence. The documents filed along with aforesaid affidavit by GDA are photocopies. Accordingly, GDA preferred an application under section 65 of the Evidence Act (Annexure P4) with a prayer that the said photocopies may be taken in evidence as secondary evidence. The singular reason assigned for seeking such permission was that the original documents and files relating to present case have been stolen by some person from the office of GDA. A FIR was registered for this purpose and investigation is going on. Since the original documents have lost due to theft committed by some person and a criminal case is registered in this regard, the photocopies of the said documents can be treated as secondary evidence. The respondent No. 1/plaintiff submitted his reply and prayed for rejection of said application. The Court below by impugned order dated 17.12.2012 rejected the said application preferred under section 65 of the Evidence Act. The Court below opined that section 63 of the Evidence Act provides the categories of secondary evidence. In absence of original, secondary evidence is permissible under certain circumstances as enumerated in section 63 r/w section 65 of Evidence Act. The Court below opined that the documents filed by GDA do not fall within the five categories mentioned in section 63 of the Evidence Act and said documents could not be compared with the original and, therefore, the said documents cannot be treated as secondary evidence. The Court below opined that the photocopies can be compared with the original and then only it gathers relevance and genuinenss. In absence thereof, the said documents cannot be treated as secondary evidence. 3. Criticizing the said order, Shri Raghvendra Dixit, learned counsel for the GDA, submits that a careful reading of section 63 (a) (illustrations) r/w section 65 (c) makes it clear that the documents in question can be treated as secondary evidence. He relied on the definition of “proved” in the Evidence Act and submits that said documents would be proved by leading the evidence but at this stage the documents cannot be discarded. He relied on AIR 1999 Pun. and Har. 21 (Smt. Sobha Rani and Others v. Ravi Kumar and others); 2001 (1) MPWN 54 (Tawar Singh v. Ranjit Singh), and 2012 (1) MPWN 108 = 2012 (5) MPHT 160 (Mahaveer Kumar Jain v. Atal Bihari Tamrakar). 4. He relied on AIR 1999 Pun. and Har. 21 (Smt. Sobha Rani and Others v. Ravi Kumar and others); 2001 (1) MPWN 54 (Tawar Singh v. Ranjit Singh), and 2012 (1) MPWN 108 = 2012 (5) MPHT 160 (Mahaveer Kumar Jain v. Atal Bihari Tamrakar). 4. Shri J.P. Shrivastava, learned counsel for the respondent No. 1 supported the order and submits that the photocopies of the documents do not fall within the ambit of “secondary evidence” as per the Evidence Act. He submits that the said documents were filed along with affidavit of witness of GDA, namely, Shri Manoj Mathur (Officer Incharge of the case - OIC). The OIC is admitted appointed on 11.9.2012. As per GDA’s own case, the documents were stolen in 2004. The FIR was lodged in 2011. The OIC in his affidavit has nowhere stated that he had seen the original documents and compared it with the photocopies. The aforesaid fact makes it crystal clear that the documents were stolen much before appointment of OIC and there is no occassion for the said OIC to certify the correctness and genuineness of the said documents to compare it with originals. He submits that in absence of taking that responsibility and comparing of documents with the original, the said documents are impermissible for the purpose of treating them as secondary evidence. He relied on, 2002 (3) MPLJ 371 (Sunil Kumar ana another v. Anguri Chaudhari and another); 2006 (3) MPLJ 334 (Haji Mohd. and another v. Asgar Ali and another); 2012 (5) MPHT 381 (Smt. Aneeta Rajpoot v. Smt. Saraswati Gupta) and 2013 (1) MPWN 127 = 2013 (2) MPHT 227 (Vijendra Singh and others v. Deena and others). 5. I have heard learned counsel for the parties and perused the record. 6. Before dealing with the rival contentions of the parties, it is apt to quote the relevant provisions of the Indian Evidence Act, 1872. Section 63 (2) reads as under:- “63. Secondary evidence. 5. I have heard learned counsel for the parties and perused the record. 6. Before dealing with the rival contentions of the parties, it is apt to quote the relevant provisions of the Indian Evidence Act, 1872. Section 63 (2) reads as under:- “63. Secondary evidence. -- Secondary evidence means and includes - (1) XXX XXX XXX (2) Copies made from the original by mechanical process which in themselves insure the accuracy of the copy, and copies compared with such copies.” Section 63 (a) and (b) (illustrations) reads as under:- “(a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original. (b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original.” Section 65(c) 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) XXX XXX XXX (b) XXX 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.” 7. The arguments of learned counsel for the parties are based on these provisions. Section 63 (2) aforesaid makes it obligatory that the copies which are made from the original by mechanical process are required to be compared with such copies. Thus, there is no manner of doubt that two conditions are required to be fulfilled for applying section 63(2) viz, (i) the copies are made from the original by mechanical process (ii) copies are compared with original copies. Section 63 (illustration) (a) has no application, in my opinion, in the present matter bacause the said illustration deals with photographs. illustration (b) talks about comparing a letter with the original. Thus, a conjoint reading of section 63(2) with section 63 (illustration) (c) makes it clear that aforesaid two conditions are necessary to bring a document within the ambit of “secondary evidence”. illustration (b) talks about comparing a letter with the original. Thus, a conjoint reading of section 63(2) with section 63 (illustration) (c) makes it clear that aforesaid two conditions are necessary to bring a document within the ambit of “secondary evidence”. Section 65 (c) is an enabling provision where the original document is lost or destroyed and it is shown that the said event of loss or destroy of the document is not arising out of any default or neglect of the party concerned, the document can be taken as secondary evidence. 8. Shri Raghvendra Dixit relied on the judgment of this Court in Tawar Singh (supra). In the said case, as per the statement of the witness it was established that the applicant was in possession of original of promissory note of which the photocopies are filed. On the basis of aforesaid factual backdrop, this Court treated the photocopies as secondary evidence. In Mahavir Kumar Jain (supra) another Bench of this Court delivered the judgment on the basis of Tawar Singh (supra). However, a perusal of this judgment shows that the nature of document which was directed to be taken in evidence is not reflected in the judgment. The judgment is solely based on Tawar Singh ( supra). Pausing here for a moment, in Tawar Singh this Court rightly held that secondary evidence can be taken into account and photocopy is acceptable because the witness prima facie established that he was in possession of the original promissory note. In the present case, the affidavit preferred under Order 18 Rule 4 CPC of the OIC with other factual background mentioned in para 4 of this order makes it crystal clear that there was no occasion for OIC to see the original documents because the same were stolen in the year 2004 and OIC is appointed on 11.9.2012. In other words, this OIC had no opportunity either to see the original documents nor there was any chance for him to compare these documents with the original. There is no material to show that photocopy which is sought to be produced as secondary evidence is made from original by mechanical process. The facts narrated by Shri J.P. Shrivastava, mentioned in para 4, have not been doubted by Shri Raghvendra Dixit, learned counsel for the petitioner. 9. There is no material to show that photocopy which is sought to be produced as secondary evidence is made from original by mechanical process. The facts narrated by Shri J.P. Shrivastava, mentioned in para 4, have not been doubted by Shri Raghvendra Dixit, learned counsel for the petitioner. 9. In AIR 1958 Patna 133 [Katihar Jute Mills Ltd. v. Calcutta Match Works (India) Ltd. and another], the Patna High Court opined as under:- “(c) Evidence Act (1872), S. 63 (5) - secondary evidence - When is admissible. In the case of a document no secondary evidence can go in unless it is proved that the original has been destroyed or lost. Further so far as the oral account of its contents is concerned, it must be by a person who has himself seen it implying that he has read it. (Para 10)”. 10. The judgment in Sobharani (supra) cited by the petitioner is of no assistance to him because in that case the High Court gave opinion on the basis of the pleadings of the parties. It was opined that existence of secondary evidence is proved from the facts mentioned in the plaint and reply of the defendant. This is not the position here and, accordingly, the said judgments has no application in the present matter. 11. In AIR 2000 SC 2629 (Marwari Kumhar and others v. Bhagwanpuri Guru Ganeshpuri and another) the apex Court opined about a public document and held that such document can be taken into evidence when it is proved that the original was no longer available and certified copy was lost. The aforesaid statement of a party about the non-availability of the document and certified copy is not disbelieved. In the present case, the defendant has disbelieved and doubted the correctness and genuineness of the photocopies sought to be taken by the petitioner as secondary evidence. 12. Justice Dipak Misra (as His Lordship then was) in Sunil Kumar (supra) opined that when it is not disputed that neither the certified copy nor a true copy indicates and contains an endorsement and it was compared with original, the document does not meet the requirement of section 63 of the Evidence Act. In another judgment in Haji Mohd. (supra), His lordship opined that the other party denied the execution of the document. In another judgment in Haji Mohd. (supra), His lordship opined that the other party denied the execution of the document. No proof was produced that the document was executed and it is in possession of the plaintiff. The copy filed was neither a certified copy nor a true copy of the original deed. It is further held that is absence of any proof and requirement of law, the said document cannot be treated as secondary evidence. 13. In the present case, it is crystal clear that in application under section 65 of the Evidence Act it is nowhere stated that the photocopies in question were made by mechanical process from the original and it is compared with the original. The OIC, by no stretch of imagination, could have compared or certified that these are taken from the original for the reasons stated above. In my opinion, sections 63 and 65 of the Evidence Act are to be read conjointly and if one fulfills the test of secondary evidence, the documents can be treated as secondary evidence. In Tukaram S. Dighole v. Manikrao Shivaji Kokate, reported in (2010) 4 SCC 329 , the apex Court opined that “to put the matter briefly, the general rule is that secondary evidence is not admissible until the non-production of primary evidence is satisfactorily proved.” 14. In a recent judgment, reported in Vijendra Singh (supra), this Court opined that unless there is some material to show that for admitting secondary evidence, the necessary ingredients were fulfilled by the petitioner, the document cannot be taken as secondary evidence. 15. On the basis of aforesaid analysis, in my opinion, the Court below has not committed any error of law in rejecting the application of the petitioner. The necessary ingredients for treating the documents in question as secondary evidence were not available and application preferred under section 65 of Evidence Act does not contain necessary averments and declaration on the strength of which the documents could have been treated as secondary evidence. 16. The last submitssion of Shri Raghvendra Dixit, learned counsel for the petitioner is based on the definition of “proved” is of no help to him at this stage. The question of treating a document or giving a finding about “proved” would arise provided the documents in question are taken into the evidence. At this stage, this argument is premature. 17. The last submitssion of Shri Raghvendra Dixit, learned counsel for the petitioner is based on the definition of “proved” is of no help to him at this stage. The question of treating a document or giving a finding about “proved” would arise provided the documents in question are taken into the evidence. At this stage, this argument is premature. 17. For the aforesaid cumulative reasons and analysis, I find no infirmity in the order of Court below. Interference under Article 227 of the Constitution can be made, if the order suffers from any jurisdictional error or manifest procedural irregularity or impropriety or it is pregnant with any palpable perversity. Another view is possible is not a ground for interference. Interference can be made sparingly in rare cases when such ingredients are fulfilled. It cannot be made as a matter of routine on a drop of hat. In my opinion, the Court below has given justifiable and plausible reasons based on legal position. However, it is made clear that liberty is reserved to the petitioner to prefer proper application and affidavit before the Court below which may fulfill the requirement of sections 63 and 65 of the Evidence Act. This Court has given opinion on the basis of present affidavit preferred by the petitioner under Order 18 Rule 4 CPC and on the basis of application under section 65 of the Evidence Act. 18. With the aforesaid observations, petition is dismissed. There shall be no order as to costs.