JUDGMENT Heard Mr. Agni, learned Counsel appearing on behalf of the petitioner and Mr. Coutinho, learned Counsel appearing on behalf of the respondent. 2. Rule. Rule made returnable forthwith. 3. Mr. Coutinho, learned Counsel, waives service of notice on behalf of the respondent. By consent, hearth forthwith. 4. The petitioner has taken exception to the order dated 16/11/2013 passed by the learned Adhoc District Judge-I, FTC-I, Margao (First Appellate Court, for short), in Regular Civil Appeal No. 244/2010/FTC-I whereby, the application for leave to lead secondary evidence came to be rejected. 5. The facts giving rise to the petition may be briefly stated as under : The petitioner had filed a Special Civil Suit No. 02/2002/A before the learned Civil Judge, Senior Division at Margao (Trial Court, for short) for recovery of money and other consequential reliefs. Inter alia, it was urged in the plaint that on 08/03/2000, the respondent had hired an excavator machine belonging to the petitioner to be operated at Barazon mines and on trip basis and that the work commenced in March, 2000 and monthly bills were submitted by the petitioner from time to time and were received by the respondent, but the bills were not paid in time. It was further alleged that the petitioner submitted the statement of account to the respondent. It was further alleged the petitioners sent revised statement to the respondent vide letter dated 10/05/2001 showing the outstanding dues of Rs.10,59,601.30/- out of which the respondent had paid only Rs.3 Lakhs. Since the balance demand was not paid, the petitioner had addressed a legal notice dated 08/11/2001 to the respondent demanding the balance amount due. Since despite the said legal notice the respondent failed to make the balance payment, the said Special Civil Suit No.02/2001 was filed before the learned Trial Court for recovery of Rs.7,59,601.30/- and costs of Rs.20,000/-. The said suit was resisted by the respondent and ultimately, by judgment, order and decree dated 07/05/2008, the suit was dismissed by the Trial Court. The petitioner then preferred an appeal being Regular Civil Appeal No.244/2010/FTC/I which is pending before the learned First Appellate Court. During the course of the said appeal, the petitioner filed an application dated 19/08/2010 under Order XLI, Rule 27 of C.P.C. for production of various bills pertaining to the transactions as set out in the plaint, as additional documents. The petitioner then preferred an appeal being Regular Civil Appeal No.244/2010/FTC/I which is pending before the learned First Appellate Court. During the course of the said appeal, the petitioner filed an application dated 19/08/2010 under Order XLI, Rule 27 of C.P.C. for production of various bills pertaining to the transactions as set out in the plaint, as additional documents. The notarized copies of the said documents were filed along with the application. The learned First Appellate Court allowed the said application. Thereafter, the petitioner filed his affidavit-in-evidence to lead additional evidence in respect of the said additional documents. 6. On 12/03/2012, the petitioner filed an application before the First Appellate Court for permission to lead secondary evidence, since the originals of the said additional documents allowed to be produced by order dated 22/1/2010, were lost in transit by the driver of the petitioner. The said application was supported by an affidavit of the driver and a copy of the police complaint. The respondent objected to the said application by a reply dated 18/04/2012. The learned First Appellate Court, by order dated 15/01/2013, dismissed the said application. Against the said order dated 15/01/2013, the petitioner filed Writ Petition No.263/2013 before this Court and by order dated 04/07/2013, this Court disposed of the said petition and the petitioner was given liberty to serve an appropriate notice in terms of Section 66 of the Evidence Act calling upon the respondent to produce the said documents and thereafter, to file an appropriate application to adduce secondary evidence and the learned Judge of this Court directed the First Appellate Court to decide the application afresh, uninfluenced with the observations made earlier in the order dated 15/01/2013. In terms of the order dated 04/07/2013 passed by this Court in Writ Petition No. 263/2013, the petitioner issued a legal notice dated 21/08/2013 to the respondent calling upon him to produce the originals of the documents mentioned in the said notice. The said notice was replied by the respondent vide reply dated 07/09/2013 contending that the said documents were not in their custody and that they were not issued to him and that the endorsement shown on the said bills was not made on behalf of the respondent. Thereafter, the petitioner filed an application dated 07/09/2013 seeking direction from the First Appellate Court to direct the respondent to produce the originals of the said documents before the Court. Thereafter, the petitioner filed an application dated 07/09/2013 seeking direction from the First Appellate Court to direct the respondent to produce the originals of the said documents before the Court. By order dated 07/09/2013, the said application came to be dismissed holding that such a direction cannot be issued, since the documents are not with the respondent and that according to the respondent, they never existed. The petitioner, thus, complied with the pre-requirements of the Evidence Act for filing an application for secondary evidence and ultimately, filed an application dated 16/11/2013 for leading secondary evidence. However, the said application came to be dismissed by order dated 16/11/2013. By a short cryptic order dated 16/11/2013, the learned First Appellate Court dismissed the application. The First Appellate Court observed that the earlier orders being order dated 15/01/2003 (sic 2013) on Exhibit D-31 and order dated 07/09/2013 on Exhibit 35/D are sufficient enough to deal with this application. The First Appellate Court held that since the very existence of the original documents is in dispute since inception and since the petitioner has not answered the basic questions raised about existence and possession of originals under the earlier referred orders, there appears no scope to consider the present application. In the earlier order dated 15/01/2013, the First Appellate Court held that the affidavits and mere filing of police complaint does not prove the existence of the originals. The First Appellate Court observed that as held in "Ashok Dulichand Vs. Madhavlal Dube", [ (1975)4 SCC 664 ], there should be material on record to indicate and explain what were the circumstances under which the photo-stat copies are prepared. The First Appellate Court held that the same has not been explained either in the application or in the affidavits and hence, the notarized copies are not beyond suspicion. The First Appellate Court observed that the said documents were not produced in the Trial Court and that in the appeal, it was claimed that they were found on the loft of the storeroom and again, it is now stated that the originals were lost. The order dated 16/11/2013 is impugned in the present petition. 7. Mr. Agni, learned Counsel appearing on behalf of the petitioner, submitted that way back on 19/08/2010, the petitioner had filed an application for additional documents and along with the application, had annexed the list of documents giving the description and date thereof. The order dated 16/11/2013 is impugned in the present petition. 7. Mr. Agni, learned Counsel appearing on behalf of the petitioner, submitted that way back on 19/08/2010, the petitioner had filed an application for additional documents and along with the application, had annexed the list of documents giving the description and date thereof. He further submitted that the notarized copies of the bills enlisted in the said list, were also produced before the First Appellate Court. He submitted that this application filed under Order XLI, Rule 27 read with Section 151 of C.P.C. was allowed by the Trial Court. He further pointed out that the notarized copies of the bills now sought to be produced by way of secondary evidence, if compared with the details of the bills mentioned in the list of documents dated 19/08/2010, it will be found that they are exactly the same bills. Thus, according to the learned Counsel, factual foundation was there. He submitted that before the Trial Court, a letter dated 17/04/2001 was produced by the petitioner and it was admitted in evidence as exhibit C-27 and this was a letter of balance confirmation as on 31/03/2001. He submitted that annexed to this letter is the statement of account containing the same bills with the same dates and amounts as of the bills of which notarized copies are now sought to be produced. He submitted that the admission of the said letter dated 17/04/2001 was not objected to. He further submitted that the order allowing the application under Order XLI, Rule 27 of C.P.C. was not challenged. He submitted that if the documents mentioned in the said application did not exist, then, the respondent had to challenge even the production of the said documents. He, therefore, submitted that the respondent can only object to the mode of proof of the said documents, but cannot object to production of the same on the ground that the originals were not existing. He pointed out from the said notarized copies of the bills that there is stamp of the respondent company on the said bills and also there is signature on the same. He, thus, urged that all the said bills have been acknowledged. According to him, as per the said acknowledged documents, the petitioner had taken out copies and got them notarized. He, thus, urged that all the said bills have been acknowledged. According to him, as per the said acknowledged documents, the petitioner had taken out copies and got them notarized. He further submitted that the cause for inability to produce the originals was specifically set out in the application by saying that the originals were lost in the transit by the driver. He submitted that not only the affidavit of the petitioner but also the affidavit of the said driver was filed and above all, even a police complaint was lodged. He, therefore, submitted that in the above background, the First Appellate Court ought to have believed that the originals were lost and, therefore, secondary evidence ought to have been allowed. He then pointed out that as per the direction of this Court, even a notice under Section 66 of the Evidence Act was issued to the respondent and thereafter, even an application was filed before the First Appellate Court to direct the respondent to produce the originals and since everything was in vain, ultimately the application for leave to produce secondary evidence was filed. He, therefore, submitted that in all circumstances above, the impugned order is arbitrary and perverse and would cause grave prejudice to the case of the petitioner. He submitted that the mode of proof of the said documents will arise at the time of oral evidence and that even the genuineness of the contents of the same will have to be proved by the petitioner and the evidence of the petitioner would be tested in cross-examination. 8. Mr. Agni, learned Counsel appearing on behalf of the petitioner, relied upon the following judgments : (i) Padam Chandra Singhi Vs. Shri P. B. Desai and others, [2012(1) All MR 510]. (ii) U. Sree Vs. U. Shrinivas, [ (2013)2 SCC 114 ] 9. On the other hand, Mr. Coutinho, learned Counsel appearing on behalf of the respondent, while supporting the impugned order, submitted that in paragraph 4 of the written statement filed by the defendant, the contents of paragraph 4 of the plaint wherein there is mention of letter dated 17/04/2001, have been specifically denied by the defendant. On the other hand, Mr. Coutinho, learned Counsel appearing on behalf of the respondent, while supporting the impugned order, submitted that in paragraph 4 of the written statement filed by the defendant, the contents of paragraph 4 of the plaint wherein there is mention of letter dated 17/04/2001, have been specifically denied by the defendant. He submitted that merely because the statement of account was annexed to the said letter dated 17/04/2001, that does not mean that the notarized copies now sought to be produced are genuine since the plaintiffs can very well manipulate the notarized copies so as to exactly match with the details mentioned in the statement of accounts annexed to the letter dated 17/04/2001. Mr. Coutinho further contended that the conditions laid down in Section-65 of the Evidence Act must be fulfilled before secondary evidence can be admitted. He urged that in the present case, there is no proof of existence and execution of the original bills and, therefore, the conditions laid down in Section-65 of the Evidence Act are not fulfilled. He pointed out that according to the petitioner, file containing the bills was found in a box kept on the loft of the store room but it is nowhere stated as to who and why notarized copies of the said bills were prepared. He submitted that since the factual foundation has not been laid down for giving secondary evidence, it is not permissible to allow the petitioner to adduce secondary evidence. Mr. Coutinho, learned Counsel appearing on behalf of the respondent, relied upon the following judgments : (i) J. Yashoda Vs. K. Shobha Rani, [ (2007)5 SCC 730 ] (ii) H. Siddiqui (Dead) by L.Rs. Vs. A. Ramlingam, [ (2011)4 SCC 240 ] 10. I have perused the material on record and I have considered the submissions made by the learned Counsel on behalf of the parties and also the judgments cited by the parties. Considering the efforts taken by the petitioner from time to time, in my view, the prayer of the petitioner to allow to lead secondary evidence is bona fide and requires to be considered favourably. 11. The plaintiff had filed the suit on 31/12/2001. In paragraph 4 of the plaint, the plaintiff had specifically averred that on 17/04/2001, vide letter No.SE/DE/-1/Audit/01-02, the plaintiff submitted statement of account to the defendant. 11. The plaintiff had filed the suit on 31/12/2001. In paragraph 4 of the plaint, the plaintiff had specifically averred that on 17/04/2001, vide letter No.SE/DE/-1/Audit/01-02, the plaintiff submitted statement of account to the defendant. In the list of documents dated 31/12/2001, the plaintiff relied upon the said letter dated 17/04/2001 annexed to which was the statement of account mentioning the bills with details like number, period, date of bill, machine, bill amount, HSD amount and net amount. A perusal of the written statement reveals that the contents of paragraph-4 of the plaint were specifically denied and the plaintiff was put to strict proof thereof. However, it was not specifically pleaded in the written statement that the plaintiff had not at all issued the bills, which are mentioned in the statement of account. This letter along with the statement of account was produced before the Trial Court as Exhibit C-26. In reply to this letter and the statement of account, the respondent by letter dated 19/04/2001 which was produced as exhibit C-28, wrote back to the plaintiff alleging that the statement of account does not tally with their statement. The respondent, therefore, enclosed with the said reply, his own statement of account. The petitioner filed an application before the First Appellate Court in Regular Civil Appeal No.244/2010/FTC-I thereby seeking leave to produce the said bills along with the said application. The petitioner annexed the list of documents sought to be relied upon. A perusal of the said list reveals that the bills sought to be relied upon bear the same bill numbers and the same dates as mentioned in the statement of account annexed to the letter dated 17/04/2001. Notarized copies of the said bills were annexed to the said application. It is seen that all the said notarized copies bear the stamp of 'Dillan Earth Movers' with address and signature of some person, who is stated to be a representative of the respondent. This application dated 19/08/2010 was allowed by the Trial Court by order dated 22/10/2010. Thus, the plaintiff was granted liberty to produce the original bills referred to in the plaint. 12. The petitioner could not produce the original bills before the Trial Court though the said letter dated 17/04/2001 along with annexures of ledger account was produced as exhibit C-27 and the copy of the reply of the defendant was produced as exhibit C-28. Thus, the plaintiff was granted liberty to produce the original bills referred to in the plaint. 12. The petitioner could not produce the original bills before the Trial Court though the said letter dated 17/04/2001 along with annexures of ledger account was produced as exhibit C-27 and the copy of the reply of the defendant was produced as exhibit C-28. The Trial Court in the judgment dated 07/05/2008 observed that office copies of the bills were not produced and if produced they could have created some circumstances to corroborate the letter dated 19/04/2001 and summary of machine bills mentioned in the annexure thereof. It was because of the same that the petitioner had filed the said application under order XLI, Rule 27 of C.P.C. before the First Appellate Court and as already stated earlier, the same was allowed. 13. Subsequently, the petitioner filed an application dated 30/01/2012 before the Trial Court for time alleging that the file of the original documents containing the said bills was sent through office boy to the Advocate on 05/12/2011 and that the said office boy left the file in the bus and could not trace the same, due to which, a police complaint has been lodged. Thereafter, since the said file containing the original documents of which the notarized copies were already produced on record could not be traced, the petitioner filed an application to lead secondary evidence which application is dated 12/03/2012. In this application, it was specifically stated that the Advocate of the petitioner gave call to him at 10.00 a.m. on 05/12/2011 informing that his matter was posted for recording evidence on 06/12/2011 and asked him to send the file of original documents which are required to be produced on 06/12/2011 for his perusal. The petitioner further stated in the application that in his office there is one office boy by name Sudhin Navelkar and the petitioner sent the file containing the original documents through the said Sudhin Navelkar to deliver in the office of Advocate Shrikant Nayak at Ponda. The petitioner further stated in the application that in his office there is one office boy by name Sudhin Navelkar and the petitioner sent the file containing the original documents through the said Sudhin Navelkar to deliver in the office of Advocate Shrikant Nayak at Ponda. It is further stated in the application that Sudhin Navelkar in order to deliver the file containing the original documents, left the office at 4.00 p.m., took a bus bearing No.GA-01-W-4257 (SAI SHIRDI) which plies from Margao- Ponda- Panaji and reaches Ponda around 5.00 p.m. It is further stated that the said office boy was standing in the bus which was full of passengers and had kept the file on the overhead carrier above the seats and after some time, he got a seat which he occupied, but the file remained on the carrier. It is further stated that Sudhin Navelkar got down from the bus while talking to his friend, whom he met in the bus and while getting down, forgot about the file kept on the carrier above the seat. It is further stated in the application that thereafter, the said Sudhin Navelkar and his friend went for tea. Shri Navelkar realised that he had forgotten the file in the bus when his friend had gone away, after a long conversation. The petitioner has stated in the application that Sudhin Navelkar gave a call to the petitioner and informed about the said fact and the petitioner told the said office boy to inform the said fact to the Advocate. Accordingly, Sudhin Navelkar went to the office of Advocate Nayak and met his Assistant Shri Bashir Herekar, who told that Advocate Nayak had a matter in Panaji and would reach back around 6.30 p.m. to 7.00 p.m. It is further stated that after waiting for nearly half an hour, Sudhin Navelkar told Advocate Bashir regarding the incident and Advocate Bashir told Sudhin to take up a bus and go to Panaji and to search for the said bus and for the file. Thereafter, Sudhin Navelkar went to Panaji at about 7.15 p.m. and started searching for the said bus and was informed that the said bus reached Panaji at 6.15 p.m. and went back for Ponda at 6.30 p.m.. Thereafter, Sudhin Navelkar went to Panaji at about 7.15 p.m. and started searching for the said bus and was informed that the said bus reached Panaji at 6.15 p.m. and went back for Ponda at 6.30 p.m.. It is further stated in the application that Sudhin took Panaji-Ponda bus at 7.30 p.m. and went to Ponda by about 8.30 p.m., but could not find the said bus. Thereafter, Sudhin again called the petitioner and met Advocate Nayak as per the instructions of the petitioner and explained to him the said fact, upon which Advocate Nayak advised him to file police complaint at Ponda Police Station. It is stated in the application that when Sudhin Navelkar went to Ponda Police Station, one policeman told him to search the file in the bus in the morning time on 06/12/2011 when the said bus comes to Ponda Bus Stand and if the file is not found, then, to lodge police complaint. Accordingly, Sudhin came early in the morning at Ponda Bus Stand and searched for the bus. However, one conductor informed him that the bus about which timing and description of bus was given by Sudhin, is from Marcaim and does not come to Ponda, but goes to Panaji and reaches Ponda at about 10.35 a.m. It is stated that Sudhin Navelkar was able to find the bus at around 10.40 a.m., but after searching for the file, he could not get the same. Thereafter, Sudhin Navelkar filed police complaint. It is on account of the above reason that the petitioner filed the said application for leave to lead secondary evidence, since the notarized copies of the documents were already on record. Along with the said application, affidavit of the petitioner as well as that of Sudhin Navelkar were filed. Sudhin Navelkar in his affidavit stated all the said facts as narrated above. The petitioner also produced a copy of the police complaint regarding missing of the said original documents. 14. By reply, the respondent resisted the application alleging that the original documents never existed and that a concocted story has been made out for pushing the fabricated documents. 15. Sudhin Navelkar in his affidavit stated all the said facts as narrated above. The petitioner also produced a copy of the police complaint regarding missing of the said original documents. 14. By reply, the respondent resisted the application alleging that the original documents never existed and that a concocted story has been made out for pushing the fabricated documents. 15. A perusal of the impugned order reveals that though the petitioner, in detail, gave reasons as to why the originals could not be produced and as to how they were lost in transit, however no discussion on the same has been made by the learned First Appellate Court and there is no finding that the said reasons are not acceptable. 16. In the case of “J. Yashoda” (supra), it has been held that for adducing secondary evidence, it is necessary for the party to prove existence and execution of the original document and that the conditions laid down in Section 65 of the Evidence Act must be fulfilled. 17. In the case of “H. Siddiqui (dead) by L.Rs.” (supra), the Apex Court has held thus : “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. 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.” 18. There is no dispute regarding the principles laid down by the Apex Court in the case of “J. Yashoda” and “H. Siddiqui (dead) by L.Rs.” (supra). 19. The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon.” 18. There is no dispute regarding the principles laid down by the Apex Court in the case of “J. Yashoda” and “H. Siddiqui (dead) by L.Rs.” (supra). 19. In the case of “Padam Chandra Singhi” (supra), a learned Single Judge of this Court has observed thus : “56. BH was called upon to produce several documents in the MMC inquiry. BH produced some of the documents and failed to produce the others. Register IV was produced by BH from the period 23rd April 1987 to 29th May 1987. This was for a period prior to the relevant period in this suit and in that inquiry. The same witness had identified the register produced for the earlier period as the register maintained by the operation sister in the OT in the normal course of the conduct of the hospital. The same register No.-IV for the later period which was the relevant period was not produced by BH. BH has conducted an inquiry with regard to the missing documents. BH has instead produced the record of the inquiry. BH has produced certain records including the proceedings in the inquiry and the ultimate report of that inquiry as documents marked Exhibits-Z-1 to Z-7. These are the documents of the hospital produced by itself. None has challenged any of these as the documents of the hospital. Amongst these documents is inquiry conducted by three persons appointed as a Board dated 30th April 1990 instituted by the Executive Director, BH dated 11th April 1990 and the report of the inquiry marked as Exhibits-Z-5 and Z-6. The inquiry which was instituted was upon the report that the operation register maintained by the Senior Assistant of CST pertaining to the period between 13th October 1987 and 17th October 1988 was found missing when the search was conducted in April 1990. The report of the inquiry shows that the registers were kept in an open shelf. No security was provided and when the operation is performed the OT staff is busy. All the OT registers were available except for the above period. All these registers were required everyday. In the past there has been no theft of the operation registers or other documents. Only the relevant register was found missing. No security was provided and when the operation is performed the OT staff is busy. All the OT registers were available except for the above period. All these registers were required everyday. In the past there has been no theft of the operation registers or other documents. Only the relevant register was found missing. The exact date of the loss could not be detected. The conclusion of the inquiry drawn by the board was that the relevant operation register pertaining to the period between 13th October 1987 and 17th October 1988 had been removed from the OT of BH by some one who might be in some way connected/interested in the entries made in that register. It is surprising that BH who had conducted the inquiry well prior to the cross examination of P.W.3 could have objected to the production of the copy of the register. It is not for Defendants 1 and 2 to object the production of this document except for the purpose of not bringing the truth on record, if there being any such objection. They are independent Doctors. They are not concerned with the OT registers. It is for the Plaintiffs to rely upon the register and for the hospital to produce it just as is done with the medical record of the original Plaintiff No.2, Exhibit-H. One of the registers is produced and the other was not. The xerox copy of one register, admitted as an admitted document has been marked exhibit. The xerox copy of the other register has been objected to be marked despite the conclusion that it was missing and a further conclusion that it could have been removed by an interested party. It may be mentioned that this is the most fit case for production of document by secondary evidence. The copies of the OT registers initially produced in the MMC and later found to be missing was marked "X-3 (colly)" for identification. It is surprising that one of the registers has been allowed to be marked Exhibit-Q and the other register has been so resisted for being marked in evidence. That is the register which was missing. When admittedly the original document once produced in evidence before any forum has been found missing a copy of the document must be marked on record as secondary evidence. That is the register which was missing. When admittedly the original document once produced in evidence before any forum has been found missing a copy of the document must be marked on record as secondary evidence. No party has refuted that the copy of the OT register No.-IV is an incorrect and fabricated copy. It has only been contended that because the original register has been missing the copy cannot be marked. This is an absurd contention. That would mean that any original document which is required by the Court to be seen for ascertaining the truth of the case can be got missing by any interested party and its copy earlier legitimately taken out and even used in earlier proceedings cannot be marked as document on record. In fact it is for such documents that the law relating to proof of documents by secondary evidence is specifically enacted. 57. It may be mentioned that under Section 65(c) of the Indian Evidence Act when an original document has been destroyed or lost and cannot be produced within a reasonable time, secondary evidence of its contents is admissible. The cross examination of P.W.3 has shown that the secondary evidence of the contents of the OT register No.-IV as the register maintained by the operation sister in the OT. P.W.3 could not explain why the register Exhibit-Q is called register No.-I. He could not remember whether there were any other registers like that register maintained in the hospital. He was shown his own evidence given before the MMC to refresh his memory. He remembered about the other register maintained by the operation sister. He was shown register No.-IV for the earlier period. He stated that it was maintained by the sister. Of course he would not remember the evidence given by him 12 years ago, but the relevant part of the evidence has been reproduced in the evidence recorded by the learned Judge in this case. Upon such evidence which the witness has not refuted and upon BH showing that the very document has been misplaced, the photo copy of the document as secondary evidence of its contents has to be admitted as evidence. The register initially marked "X-3" in evidence is, therefore, required to be marked as an exhibit and to be read in evidence as documentary evidence in this suit. It is accordingly marked Exhibit- Q-1.” 20. The register initially marked "X-3" in evidence is, therefore, required to be marked as an exhibit and to be read in evidence as documentary evidence in this suit. It is accordingly marked Exhibit- Q-1.” 20. In the case of “U. Sree” (supra), the Apex Court has relied upon various previous judgments. In paragraphs 13 and 14, the Apex Court has observed thus : “13. Before we dwell upon the tenability of the conclusions of desertion and mental cruelty, we think it condign to deal with the submission whether the photo-stat copy of the letter alleged to have been written by the wife to her father could have been admitted as secondary evidence. As the evidence on record would show, the said letter was summoned from the father who had disputed its existence. The learned Family Court Judge as well as the High Court has opined that when the person is in possession of the document but has not produced the same, it can be regarded as a proper foundation to lead secondary evidence. 14. In this context, we may usefully refer to the decision in Ashok Dulilchand V. Madahavlal Dube (1975)4 SCC 664 , wherein it has been held that : (SCC p.666, para 7) '7.... According to clause (a) of Section 65 of the Indian Evidence Act, secondary evidence may be given of the existence, condition or contents of a document 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.' Thereafter, the Court addressed to the facts of the case and opined thus: - (Ashok Dulichand case, (1975) 4 SCC 664 ) '7....In order to bring his case within the purview of clause (a) of Section 65, the appellant filed applications on 4-7-1973, before Respondent 1 was examined as a witness, praying that the said respondent be ordered to produce the original manuscript of which, according to the appellant, he had filed photo-stat copy. Prayer was also made by the appellant that in case Respondent-1 denied that the said manuscript had been written by him, the photo-stat copy might be got examined from a handwriting expert. The appellant also filed affidavit in support of his applications. It was, however, nowhere stated in the affidavit that the original document of which the photo-stat copy had been filed by the appellant was in the possession of Respondent-1. There was also no other material on the record to indicate that the original document was in the possession of Respondent-1. The appellant further failed to explain as to what were the circumstances under which the photo-stat copy was prepared and who was in possession of the original document at the time its photograph was taken. Respondent-1 in his affidavit denied being in possession of or having anything to do with such a document.' Be it noted, in this backdrop, the High Court had recorded a conclusion that no foundation had been laid by the appellant for leading secondary evidence in the shape of the photo-stat copy and this Court did not perceive any error in the said analysis.” 21. Section 65(a) and (c) of the Indian Evidence Act provide 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) 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; (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;” 22. It has to be kept in mind that the petitioner had filed Writ Petition No. 263/2013 against the order dated 15/01/2013 whereby the application to lead secondary evidence was dismissed by the First Appellate Court. It has to be kept in mind that the petitioner had filed Writ Petition No. 263/2013 against the order dated 15/01/2013 whereby the application to lead secondary evidence was dismissed by the First Appellate Court. This Court by order dated 04/07/2013 disposed of the said writ petition by giving liberty to the petitioner to serve an appropriate notice in terms of Section-66 of the Evidence Act calling upon the respondent to produce the originals of the said documents and thereafter, to file an appropriate application to adduce the secondary evidence. Accordingly, it was further observed in the order dated 04/07/2013 that the learned Additional District Judge shall decide the application afresh without being influenced by the observations made in the earlier order dated 15/01/2013. Accordingly, the petitioner issued legal notice dated 21/08/2013 under Section 66 of the Evidence Act to the respondent. The respondent sent a reply dated 07/09/2013 alleging that he does not possess the said documents. Thereafter, the petitioner filed an application before the First Appellate Court on 07/09/2013 seeking direction from the Court to the respondent to produce the originals. By order dated 07/09/2013, the First Appellate Court dismissed the said application. It is after that the petitioner filed second application for leave to produce the secondary evidence which is dated 16/11/2013 and which was dismissed by the impugned order dated 16/11/2013. It is seen that the First Appellate Court has wholly relied upon its earlier order dated 15/01/2013, though this Court had directed not to be influenced by the said earlier order dated 15/01/2013. 23. In my considered view, the requirements of Section 65 of the Evidence Act were substantially complied with and foundation for producing secondary evidence was laid. Therefore, the said notarized copies of the bills should be allowed to be produced on record subject to proof of existence, execution of the originals and proof of genuineness of the contents of the same. I am of the considered view that the impugned order is arbitrary and perverse and against the settled principles of law which would cause grave prejudice to the petitioner. No prejudice, on the other hand, shall be caused to the respondent, since the respondent will have all the opportunities to dispute the said bills in the cross-examination of the petitioner. The petition, therefore, deserves to be allowed. 24. In the result, the petition is allowed. No prejudice, on the other hand, shall be caused to the respondent, since the respondent will have all the opportunities to dispute the said bills in the cross-examination of the petitioner. The petition, therefore, deserves to be allowed. 24. In the result, the petition is allowed. (a) The impugned order dated 16/11/2013 is quashed and set aside. (b) The application dated 16/11/2013 filed by the petitioner for leave to lead secondary evidence is allowed. (c) The said documents shall be allowed to be produced subject to proof of existence, execution and genuineness of the contents thereof. 25. Rule is made absolute in the aforesaid terms. 26. The petition stands disposed of accordingly.