ORDER : 1. Under challenge is the impugned order dated 25.02.2017 whereby the petitioner-tenant’s (hereinafter ‘tenant’) application under Section 65 of the Evidence Act, 1872 (hereinafter ‘the Act of 1872’) for leading secondary evidence qua a purported agreement dated 28.06.2006 between one M/s. JKJ and Sons Jewellers and the respondent-landlord (hereinafter ‘landlord’) has been dismissed. 2. I have heard the counsel for the tenant and the landlord and perused the impugned order dated 25.02.2017. 3. The trial court has recorded in the impugned order that an earlier application filed by the tenant under Order 11, 12 and 14 CPC, the landlord had denied the existence of the aforesaid agreement dated 28.06.2006 whereupon the said application was dismissed vide order dated 03.12.2016. Resultantly the agreement of which secondary evidence was sought to led was not in existence. It was noted that aside of the aforesaid, the application under Section 65 of the Act of 1872 was also not supported by an affidavit. Reliance was also placed by the trial court on the judgment of the Apex Court in the case of (2007) 5 SCC 730 Smt. J. Yashoda Vs. Smt. K. Shobharani wherein it was held that a photocopy could not be allowed to be admitted as secondary evidence where there have no proof of the photocopy being compared with the original. The Trial court also noted that the underlying suit, in which the application was belatedly filed in 2016, had been pending since 2007 and at the stage when the tenant was under cross-examination. His conduct evidenced that the application was apparently moved only for the purpose of delaying the adjudication of eviction petition. So holding the application under Section 65 of the Act of 1872 filed by the tenant was dismissed with cost of Rs.1,000/-. 4. Hence this petition. 5. Mr. Rajat Ranjan appearing for the tenant has submitted that the impugned order is vitiated on count of the fact that application under Section 65 of the Act of 1872 has been peremptorily dismissed with reference to the irrelevant fact of the application for summoning the agreement dated 28.06.2006 from the landlord under Order 11, 12 and 14 CPC having been earlier dismissed. The suppression of the agreement by the landlord leading to the dismissal of the application under Order 11, 12 and 14 CPC was the occasion for the resort to Section 65 of the Evidence Act. Mr. The suppression of the agreement by the landlord leading to the dismissal of the application under Order 11, 12 and 14 CPC was the occasion for the resort to Section 65 of the Evidence Act. Mr. Rajat Ranjan submitted that the specific case of the tenant was that the agreement dated 28.06.2006 in issue was in the possession of the landlord, against whom the document was sought to be proved. And therein terms of Section 65 (a) of the Act of 1872, it was a fit case where secondary evidence in relation to the said documents had to be admitted. Mr. Ranjan relied on the judgment of the Apex Court in the case of Nawab Singh Vs. Inderjit Kaur AIR 1999 SC 1668 where it held that the trial court was not justified in rejecting the prayer seeking leave of the court for production of secondary evidence on doubts as to its veracity, as such veracity was to be evaluated by the court in the trial subsequent to the document being admitted. Mr. Rajat Ranjan also relied on Mst. Bibi Aisha and Ors. vs. The Bihar Subai Sunni Majlis Avaqaf and Ors. AIR 1969 SC 253 in support of his contention submitting where a document is lost secondary evidence is permissible. Mr. Rajat Ranjan further submitted that the agreement dated 28.06.2006 was referred to in the reply to the eviction petition to which there was specific denial by the landlord in the rejoinder. He submitted that hence the existence of the said agreement cannot be put to any doubt as has been sought by the denial of the landlord as an afterthought. Mr. Rajat Ranjan finally submitted that both in law and interest of justice the impugned order be set aside and the tenant be allowed to produce the photocopy of the agreement dated 28.06.2006 as secondary evidence. 6. Per contra, Mr. Ashok Mehta Senior Advocate with Mr. O.P. Mishra supported the impugned order and submitted that the law of evidence is that all facts pleaded in a plaint or in reply or in written statement have to be proved by primary evidence. Secondary evidence as defined in Section 63 can be laid as an exception in the manner laid out in Section 65 of the Evidence Act. Drawing the attention of this Court to Section 63 (2) of the Act of 1872, Mr. Secondary evidence as defined in Section 63 can be laid as an exception in the manner laid out in Section 65 of the Evidence Act. Drawing the attention of this Court to Section 63 (2) of the Act of 1872, Mr. Ashok Mehta submitted that copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies can be permitted as secondary evidence. He submitted that a photocopy would not fall in that category of documents as it cannot by itself ensure the accuracy of the copy and is prone to tampering. Besides even where secondary evidence as defined in Section 63 of the Evidence Act is available, the conditions set out in Section 65 of the Act of 1872 have to be satisfied before it can be admitted. Both the sections in a given case have to be satisfied before secondary evidence becomes admissible. They were not in the instant case. Mr. Ashok Mehta further submitted that aside of the tenant’s application being moved belatedly at the stage of his cross-examination, it was bald and did not aver the foundational facts based on which secondary evidence could be permitted in respect of the purported agreement dated 28.06.2006. It was submitted that the application did not state in what circumstances the original agreement dated 28.06.2006 to the benefit of JKJ and Sons Jewellers was in the possession of the landlord nor did it state when/why the photocopy was made and by whom and where. It did not also state how the agreement dated 28.06.2006 related to the tenant’s rights. And admittedly the application under Section 65 of the Act of 1872 was not supported by an affidavit. 7. Mr. Ashok Mehta submitted that the impugned order dated 25.02.2017 passed by the trial court dismissing the tenant’s application under Section 65 is thus a well-considered one taking into consideration the overall facts obtaining. It is a discretionary order where the discretion is not vitiated by any perversity or patent illegality. Consequently this court in the exercise of its superintending jurisdiction under Article 227 of the Constitution of India should not interfere therewith. Mr. Ashok Mehta relied upon the judgments of the Apex Court in the case of Smt. J. Yashoda Vs. Smt. K. Shobha Rani 2007 (5) SCC 730 , M. Chandra Vs. M. Thangamuthu and Ors. Consequently this court in the exercise of its superintending jurisdiction under Article 227 of the Constitution of India should not interfere therewith. Mr. Ashok Mehta relied upon the judgments of the Apex Court in the case of Smt. J. Yashoda Vs. Smt. K. Shobha Rani 2007 (5) SCC 730 , M. Chandra Vs. M. Thangamuthu and Ors. 2010 (9) SCC 712 , H. Siddiqui (dead)by LRs Vs. A. Ramalingam 2011(4) SCC 240 and Ashok Dulichand Vs. Madahavlal Dube & Anr. 1975(4) SCC 664 in support of his contentions. 8. Heard. Considered. 9. It is trite that under the Evidence Act 1872 facts have to be proved by primary evidence and secondary evidence is only an exception to the rule. For the exception aforesaid to apply, foundational facts have to be supplied to the trial court’s satisfaction and preconditions for leading secondary evidence fulfilled. The Apex Court in the case of M. Chandra Vs. M. Thangamuthu and Ors. 2010(9) SCC 712 has held that secondary evidence cannot be allowed only for reason of permission merely being sought. Permission can only be granted on the Court being satisfied that absence of primary evidence is not attributable to the applicant himself. In the case of H. Siddiqui (dead) by LRs Vs. A. Ramalingam 2011(4) SCC 240 the Apex Court reiterated that were original documents are not produced without as plausible reason and factual foundation for laying secondary evidence not established it is not permissible for the court to allow a party to adduce secondary evidence. In Para 12 it was held as under: 12. 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. 10. In Smt. J. Yashoda Vs. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. 10. In Smt. J. Yashoda Vs. Smt. K. Shobha Rani 2007 (5) SCC 730 the Apex Court held that to be entitled to lead secondary evidence it is necessary for the party seeking such indulgence to prove existence and execution of the original document. A three Judge Bench of the Apex Court in the case of Ashok Dulichand Vs. Madahavlal Dube & Anr. 1975(4) SCC 664 held in Para 7: 7. There was also no other material on the record to indicate that the original document was in the possession of respondent No. 1. The appellant further failed to explain as to what were the circumstances under which the Photostat copy was prepared and who was in possession of the original document at the time its Photostat was taken. Respondent No. 1 in his affidavit denied being in possession of or having anything to do with such a document. The photostat copy appeared to the High Court to be not above suspicion. In view of all the circumstance, the High Court came to the conclusion that no foundation had been laid by the appellant for leading secondary evidence in the shape of the photostat copy. We find no infirmity in the above order of the High Court as might justify interference by this Court. 11. In the case of U. Sree Vs. U. Srinivas 2013 (2) SCC 114 the Apex Court has held that refusal of the existence of the document by the opposite party in a trial in an application under Order 11, 12 and 14 CPC moved by the other is by itself not a reason for permitting the leading of secondary evidence without anything more. 12. Nawab Singh (supra) states that suspicion as to the secondary evidence should not lead to dismissal of an application under Section 65 of the Evidence Act. It does not however say that secondary evidence should be recklessly permitted without strict scrutiny by the Court. The scrutiny has to be strict as for any exception to apply. Secondary evidence being admitted is an exception to the rule of proving facts by primary evidence. It does not however say that secondary evidence should be recklessly permitted without strict scrutiny by the Court. The scrutiny has to be strict as for any exception to apply. Secondary evidence being admitted is an exception to the rule of proving facts by primary evidence. Besides Nawab Singh (supra) was a judgment rendered by two judges as against Ashok Dulichand (supra) rendered by a three judge Bench much prior where it was held that overall suspicious circumstances qua a document sought to be admitted in evidence as secondary evidence can lead to dismissal of an application under Section 65 of the Evidence Act. Reliance by Mr. Rajat Ranjan on the judgment in the case of Mst. Bibi Aisha and Ors.(supra) is misplaced as the said case related to a matter under Section 65 (1) of the Evidence Act and not Section 65 (a) thereof as in the instant case. Further in Mst. Bibi Aisha and Ors.(supra) the document in issue therein was admitted to exist. Not so here. 13. In the context of the dominant view in law aforesaid as evident from the various judgments of the Apex Court, it is evident that the application for leading secondary evidence qua the agreement dated 28.06.2006 on basis of a photocopy filed by the tenant was rightly dismissed by the trial court. The circumstances in which the purported photocopy of the alleged agreement dated 28.06.2006 was made were not even adverted to in the application. It was not stated as to in whose possession the original was when the photocopy was made, where when and by whom it was made, as also the purpose of the alleged original being photocopied. It is also extremely relevant to note that the purported agreement dated 28.06.2006 was between one JKJ and Sons Jewellers and the landlord and does not even refer to the tenant. It was not stated in the application under Section 65 of the Evidence Act as to in what manner the tenant was concerned with the purported agreement or that in what circumstances, despite being beneficial to the said JKJ and Sons is—as evident on its reading—was the agreement dated 28.06.2006 in possession of the landlord who had denied it. It was not stated in the application under Section 65 of the Evidence Act as to in what manner the tenant was concerned with the purported agreement or that in what circumstances, despite being beneficial to the said JKJ and Sons is—as evident on its reading—was the agreement dated 28.06.2006 in possession of the landlord who had denied it. As recorded by the trial court, aside of the casual nature of the cryptic application under Section 65 of the Evidence Act by the tenant, it was belated and filed in 2016 in an eviction petition of 2006 at the stage of the tenant’s cross-examination—after a hiatus of 10 years in an eviction petition required by the Rajasthan Rent Control Act, 2001 particularly Section 15(5) thereof—albeit directory—to be concluded within 240 days of service of the petition on the opposite party. 14. I am of the considered view that the application under Section 65 of the Evidence Act filed by the tenant to lead secondary evidence qua the photocopy of the purported agreement dated 28.06.2006 wad devoid of foundational facts. It was casual and hopelessly without merit. Casually allowing leading of secondary evidence, as was sought by the tenant, is a recipe for disaster in the administration of justice leading to prolonging of trial, by all manner of evidences of suspicious pedigree being brought on record resulting in inordinate delays, which are already legion and matter of adverse pubic comment. I am of the considered view that nothing perverse or patently illegal can be found in the impugned order dated 25.02.2017 passed by the trial court. Dismissed. A copy of this order be placed in each connected petition.