JUDGMENT & ORDER : 1. The defendant-petitioner in the suit has challenged the order dated 18/08/2017 passed by the trial court whereby his application moved under Section 65 of the Evidence Act, 1872 for submitting secondary evidence in relation to the two documents for which his earlier application moved under Order 11 Rule 12 CPC was rejected, has also been rejected. 2. Case of the defendant-petitioner is that he was allotted a plot measuring 133.33 square yards by Shri Mahaveer Grah Nirman Sahkari Samiti Ltd. as Plot No.A-21-A. The plaintiff-respondent filed a suit pointing out that a plot measuring 233.33 square yards was allotted to her in 1989 by the said society marked as Plot No.A-21. The measurement and plan of the plot was also submitted. It was the case of the plaintiff-respondent that the defendant-petitioner had broken the boundary wall and had encroached upon her property. 3. In written statement, the defendant-petitioner came out with the submissions, as noted above. 4. During trial, the defendant-petitioner moved an application under Order 11 Rule 12 CPC for demanding original documents from the defendant-respondent No.2-Shri Mahaveer Grah Nirman Sahkari Samiti Ltd. but the same was rejected on the ground that the ex-parte proceedings had already been undertaken against defendant-respondent No.2. The High Court vide order dated 04/12/2017 upheld that order in SB Civil Writ Petition No.7634/2017. 5. In the meanwhile, the present application, which was pending before the trial court, was also rejected and the present writ petition came to filed before this Court on 01/12/2017. 6. Submission of counsel for the defendant-petitioner is that since his application under Order 11 Rule 12 & 14 CPC was rejected and photo-stat copies of the documents had been produced by the defendant-respondent No.2 earlier in terms of the directions given by the trial court, the defendant-petitioner had no other remedy but to move the present application under Section 65 of the Act of 1872 for treating it as a secondary evidence. Learned counsel submits that the trial court has fallen in error in rejecting his application. Counsel has relied on the law laid down by this Court in the case of Shedu & others Vs. Birdha & another: 2002(5) WLC (Raj.) 761 wherein it has been held as under:- 5. Learned counsel submits that the trial court has fallen in error in rejecting his application. Counsel has relied on the law laid down by this Court in the case of Shedu & others Vs. Birdha & another: 2002(5) WLC (Raj.) 761 wherein it has been held as under:- 5. It is no doubt true that in normal circumstances a document in original has to be treated as primary evidence in support of which secondary evidence only could have been allowed to be adduced by producing primary evidence but in the special facts & circumstances of a particular case. If the primary evidence is in the nature of any document which could not possibly have been in possession of the plaintiff and the facts further indicate that this document was vital, the burden of leading primary evidence in regard to that this document could not lie on the plaintiff since he could possibly lead only secondary evidence which is the photocopy of the document executed by the defendant. Thus, although there can be no quarrel with the legal proposition that secondary evidence can be led only after primary evidence is led, it cannot be applied to a situation wherein denial to accept photo copy of the relevant document is bound to result into mis- carriage of justice and prejudice the case of a particular party. Therefore, this principle cannot be allowed to be applied mechanically by the court below specially when it was disclosed that it was capable of affecting the specific pleading raised in the plaint.” 7. Counsel for the defendant-petitioner has also relied upon the law laid down by the Supreme Court in the case of Rakesh Mohindra Vs. Anita Beri and others: JT 2015(10) SC 588 wherein it has been held as under:- 17. The pre-conditions for leading secondary evidence are that such original documents could not be produced by the party relied upon such documents in spite of best efforts, unable to produce the same which is beyond their control. The party sought to produce secondary evidence must establish for the non-production of primary evidence. Unless, it is established that the original documents is lost or destroyed or is being deliberately withheld by the party in respect of that document sought to be used, secondary evidence in respect of that document cannot accepted.” 8. The party sought to produce secondary evidence must establish for the non-production of primary evidence. Unless, it is established that the original documents is lost or destroyed or is being deliberately withheld by the party in respect of that document sought to be used, secondary evidence in respect of that document cannot accepted.” 8. Learned counsel for the defendant-petitioner submits that as the defendant-petitioner has exhausted all the remedies which were available to him for producing the original documents, the application under Section 65 of the Act of 1872 was in order and ought to have been allowed. 9. Per-contra, learned counsel for the plaintiff-respondent submits that the documents, which are sought to be produced in secondary evidence, were already exhibited by the defendant-petitioner in his affidavit as Exhibit -A-5 and A-6 and at the time of recording evidence, the plaintiff-respondent had objected, however, the trial court had accepted them as documents subject to final decision and in such circumstances, there was no occasion to entertain the application under Section 65 of the Act of 1872. However, it is his submission that the issues framed by the trial court lay down the onus of proving on the plaintiff-respondent herself and thus, there is no occasion for the defendant-petitioner to demand the documents to be exhibited in terms of secondary evidence under Section 65 of the Act of 1872. The further submission of counsel is that there has been a material concealment while filing the present writ petition and this fact was not mentioned in the writ petition of having exhibited the two documents earlier in evidence when the evidence was recorded in August, 2017. It is his submission that concealment goes to the root of the case and ought to have been taken notice by this Court. 10. Having noted the submissions of learned counsel for both the parties and after going through the order impugned dated 18/08/2017 passed by the Additional Senior Civil Judge and Additional Chief Judicial Magistrate No.2, Jaipur Metropolitan, this Court finds that the learned trial court has noted that the documents no. 4 to 7 were not allowed to be taken on record vide order dated 28/01/2017. 4 to 7 were not allowed to be taken on record vide order dated 28/01/2017. It is also seen that the application moved under Order 11 Rule 12 & 14 CPC has been rejected solely on the ground that the proceedings against the defendant-respondent No.2 have been held to be ex-parte and therefore, the documents have been not called for from their possession. Thus, this Court finds that sufficient steps were taken by the defendant-petitioner for calling for the original documents which he wanted to place on record as secondary evidence. 11. The Apex Court in the case of Rakesh Mohindra Vs. Anita Beri and others (supra) has held that the precondition for leading secondary evidence is that the Court should be satisfied with appropriate steps have been taken by the concerned party for producing the original documents which are not in his possession and which are stated to be in possession of the other person. Originality, such documents ought to have been directed to be produced from the concerned party. However, in the circumstances, as noted above, if the original documents could not be produced and the defendant-respondent no.2 himself has placed photo copies of the originals, it would be in the interest of justice that the application under Section 65 of the Act of 1872 is allowed and the same is treated as secondary evidence for the purpose of disposal of the suit. The submission of learned counsel for the plaintiff-respondent that the onus lies for proving the various issues framed is only on the plaintiff-respondent, would not be of any material change. 12. Consequently, the writ petition is allowed. The order impugned dated 18/08/2017 passed by the learned trial court is set aside and the application moved by the defendant-petitioner under Section 65 of the Act of 1872 for calling for secondary evidence relating to the two documents i.e. revised list of allottees and revised map as published, is allowed. No costs.