ORDER : 1. Rule. Rule made returnable forthwith. Heard finally with the consent of the learned counsel appearing for the parties. 2. By this writ petition, the petitioner (original defendant) has challenged order dated 10.10.2017 passed by the 7th Joint Civil Judge, Senior Division, Nagpur, in Special Civil Suit No. 520 of 2010, whereby the trial Court has partly allowed the application below Exh.56 filed by the respondent (original plaintiff) for leading secondary evidence in respect of a document. 3. The respondent herein filed a suit for declaration, permanent and mandatory injunction, bearing Special Civil Suit No. 520 of 2010, against the petitioner in respect of certain documents styled as memorandum of understanding, possession receipt and a supplementary agreement executed between the parties. In the suit, a specific prayer has been made on behalf of the respondent to declare that the memorandum of understanding dated 05.02.2008 sought to be relied upon by the petitioner for a value of Rs. 50,00,000/- was an outcome of fraud, deceit and malice and the same was bad in law as it was never executed by the respondent. In the said suit it was specifically stated by the respondent that he was in dire need of money and that in such a situation he had approached the petitioner for grant of hand loan. It was stated that initially the need of the respondent was to the extent of Rs. 1.5 crores, but later on his condition changed and he was actually requiring a financial assistance to the tune of Rs. 50,00,000/-. It was contended that the petitioner exploited the dire financial condition of the respondent and got signed certain papers and documents, which were later being allegedly misused by the petitioner. 4. The petitioner filed his written statement in the aforesaid suit and denied the allegations made by the respondent in respect of alleged fraud and deceit committed by him. There was specific denial in the written statement in respect of a document styled as memorandum of understanding wherein the amount of consideration had been stated as 1.5 crores. The petitioner relied upon a possession receipt and a supplementary agreement between the parties to contend that the memorandum of understanding was indeed executed between the parties for an amount of Rs. The petitioner relied upon a possession receipt and a supplementary agreement between the parties to contend that the memorandum of understanding was indeed executed between the parties for an amount of Rs. 50,00,000/- in pursuance of which the possession was handed over by the respondent to the petitioner and subsequently a tripartite agreement was executed where the Maharashtra Industrial Development Corporation was a party pertaining to lease in respect of plots within the land which was subject-matter of the memorandum of understanding. Apart from this, in the year 2012, the petitioner also filed a suit for specific performance in respect of the said memorandum of understanding dated 05.02.2008 wherein according to the petitioner the consideration agreed between the parties was only Rs. 50,00,000/-. 5. It has also come on record that along with a list of documents marked as Exh.13, the petitioner had placed on record in the suit filed by the respondent originals of the memorandum of understanding dated 05.02.2008 where the consideration amount was said to be Rs. 50,00,000/- and a possession receipt dated 25.09.2008. 6. The respondent, on 29.01.2016, issued notice to produce documents under Order 11, Rule 16 of the C.P.C. to the petitioner wherein the list of documents included memorandum of understanding dated 05.02.2008 valued at Rs. 1.5 crores, the original of which according to the respondent, was with the petitioner. A photocopy of the same was placed on record. Thereafter, on 09.06.2017, the respondent moved an application for grant of permission to lead secondary evidence. It was contended in the said application on behalf of the respondent that the original of the memorandum of understanding dated 05.02.2008 valued at Rs. 1.5 crores was with the petitioner and a notice to produce document had already been issued to him and that in these circumstances, the application filed by the respondent for permission to lead secondary evidence was required to be granted. On 21.06.2017, the petitioner filed his say opposing the said application. It was submitted that memorandum of understanding dated 05.02.2018, possession letter/receipt and supplementary memorandum of understanding dated 09.01.2009 are all admitted documents between the parties and further the original of the memorandum of understanding and the possession receipt were already placed on record vide Exh.13 dated 10.11.2010 in the aforesaid suit filed by the respondent. It was submitted that memorandum of understanding dated 05.02.2018, possession letter/receipt and supplementary memorandum of understanding dated 09.01.2009 are all admitted documents between the parties and further the original of the memorandum of understanding and the possession receipt were already placed on record vide Exh.13 dated 10.11.2010 in the aforesaid suit filed by the respondent. The execution of certain promissory note, in respect of which also respondent had sought permission to lead secondary evidence, was specifically denied in the aforesaid say filed on behalf of the petitioner. 7. In the impugned order, the trial Court recorded that as per the say filed on behalf of the petitioner, the existence of the said documents was admitted. It was also stated that the originals of the same were already on record. On this basis, the trial Court proceeded to hold that when the documents were admitted and the originals were already on record, the permission sought by the respondent for leading secondary evidence was required to be granted. In respect of promissory note, the trial Court held that since the execution of the same was specifically denied, permission to lead secondary evidence could not be granted because the respondent had failed to show that the originals of such documents were either shown to be with the petitioner or that they were shown to be in control of the petitioner herein. Accordingly, the trial Court partly allowed the application filed on behalf of the respondent. 8. In support of the writ petition, Mr. A.G. Gharote, learned counsel for the petitioner, invited the attention of this Court to Sections 63 and 65 of the Indian Evidence Act, 1872 and contended that the petitioner was first required to demonstrate that original of the document in question i.e. memorandum of understanding valued at Rs. 1.5 crores dated 05.02.2008 existed and then the respondent was further required to show that the original of the said document was shown to be or appeared to be in possession of the petitioner or that it was in the power and control of the petitioner. It was submitted that the petitioner had stoutly denied existence of such memorandum of understanding valued at Rs. 1.5 crores dated 05.02.2008 in written statement itself. On the contrary, the petitioner had specifically come up with the case that the agreed consideration in the memorandum of understanding dated 05.02.2008 was only Rs. It was submitted that the petitioner had stoutly denied existence of such memorandum of understanding valued at Rs. 1.5 crores dated 05.02.2008 in written statement itself. On the contrary, the petitioner had specifically come up with the case that the agreed consideration in the memorandum of understanding dated 05.02.2008 was only Rs. 50,00,000/- and the original of such a document was already placed on record before the trial Court along with list of documents marked as Exh.13. It was submitted that the there was emphatic denial regarding the existence of the document claimed by the respondent to be the memorandum of understanding valued at Rs. 1.5 crores dated 05.02.2008 and it was also denied that the original was with the petitioner. In these circumstances, according to the learned counsel for the petitioner, the trial Court ought not to have partly allowed the application of the respondent. It was submitted that the trial Court appeared to have proceeded on a misinterpretation of the say filed on behalf of the petitioner because what was said in the say filed on behalf of the petitioner was that the existence of the memorandum of understanding dated 05.02.2008 valued at Rs. 50,00,000/- along with other documents was admitted by the petitioner and that the originals of such documents were already placed on record by the petitioner. This was misread by the trial Court to be an admission about the existence of the memorandum of understanding valued at Rs. 1.5 crores dated 05.02.2008. On this basis, it was submitted that the photocopy sought to be brought on record and attempt being made for leading secondary evidence in the context of the same was impermissible which trial Court failed to appreciate. In support of his contention, the learned counsel placed reliance on judgments of the Hon'ble Supreme Court in the case of J. Yashoda vs. K. Shobha Rani, (2007) 5 SCC 730 : AIR 2007 SC 1721 and H. Siddiqui vs. A. Ramalingam, (2011) 4 SCC 240 : AIR 2011 SC 1492 . 9. On the other hand, Mr. M.P. Naidu, learned counsel appearing for the respondent, submitted that the respondent in his plaint before the trial Court had specifically pleaded as regards the existence of the memorandum of understanding dated 05.02.2008 valued at Rs. 1.5 crores and that all documents after being executed had been handed over to the petitioner. 9. On the other hand, Mr. M.P. Naidu, learned counsel appearing for the respondent, submitted that the respondent in his plaint before the trial Court had specifically pleaded as regards the existence of the memorandum of understanding dated 05.02.2008 valued at Rs. 1.5 crores and that all documents after being executed had been handed over to the petitioner. According to the learned counsel for the respondent, such pleadings in the plaint were enough substratum for the respondent to have satisfied the requirement of Sections 63 and 65 of the aforesaid Act and the trial court was justified in passing the impugned order. The learned counsel further submitted that a proper reading of the application filed on behalf of the respondent below Exh.56 for leading secondary evidence and the say filed in respect of the same on behalf of the petitioner, would show that there was clear admission on the part of the petitioner thereby demonstrating that the original was shown to be or at least appeared to be in possession of the petitioner, facilitating leading of secondary evidence by the respondent. On this basis, the learned counsel submitted that the writ petition deserved to be dismissed. 10. Heard learned counsel for the parties and perused the record. 11. Sections 63 and 65 of the aforesaid Act are required to be referred to in order to appreciate the contentions raised on behalf of the parties. The aforesaid provisions read as follows:- “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. 65. (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. 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 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. (b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest. (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) when the original is of such a nature as not to be easily movable. (e) when the original is a public document within the meaning of Section 74. (f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in [India] to be given in evidence. (g) when the originals consists of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection. In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.” 12. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.” 12. A bare perusal of the aforesaid provision shows that the first requirement for seeking permission to lead secondary evidence is that the party applying for such facility of leading secondary evidence has to show that the original of the document in respect of which the secondary evidence is sought to be led, is shown or appears to be in possession or power of the person against whom the document is sought to be proved. In the instant case, it is the case of the respondent that all original documents, including the aforesaid memorandum of understanding dated 05.02.2008 allegedly valued at Rs. 1.5 crores were handed over to the petitioner. This is stated specifically in the suit filed on behalf of the respondent. In fact, it is the case of the respondent that the petitioner indulged in fraud and deceit in order to exploit the poor financial condition of the respondent. Such pleadings on behalf of the respondent have been specifically denied in the written statement filed on behalf of the petitioner. In fact, the case of the petitioner was that the memorandum of understanding was valued at Rs. 50,00,000/- and that the original of the said document was indeed with the petitioner and hence it was placed on record along with other original documents annexed to a list of documents marked as Exh.13 before the trial Court. Therefore, a perusal of the pleadings on record shows that there is word of the respondent against the word of the petitioner. It has also come on record that the petitioner has produced the original of the memorandum of understanding valued at Rs. 50,00,000/- dated 05.02.2008, in support of the stand taken by him in his written statement. It has also come on record that the original of the possession receipt has also been placed on record, which in turn referred to the memorandum of understanding dated 05.02.2008 valued at Rs. 50,00,000/-. There is clear denial about the very existence of the memorandum of understanding dated 05.02.2008 valued at Rs. It has also come on record that the original of the possession receipt has also been placed on record, which in turn referred to the memorandum of understanding dated 05.02.2008 valued at Rs. 50,00,000/-. There is clear denial about the very existence of the memorandum of understanding dated 05.02.2008 valued at Rs. 1.5 crores, which has been referred to and relied upon by the respondent. It is also an admitted position that only a photocopy of the said alleged memorandum of understanding dated 05.02.2008 valued at Rs. 1.5 crores has been produced by the respondent. The claim that the original of the same is with the petitioner has been stoutly denied by the petitioner. 13. In these circumstances, the application filed by the respondent below Exh.56 for permission to lead secondary evidence and the say filed in response to the same by the petitioner, need to be appreciated. The respondent in the said application has clearly stated in terms of his pleadings in the plaint that there indeed exists a memorandum of understanding dated 05.02.2008 valued at Rs. 1.5 crores and that the original of the same is with the petitioner. In response the petitioner stated in the say filed before the trial Court that the memorandum of understanding dated 05.02.2008, possession letter and supplementary memorandum of understanding were all admitted documents between the parties. It is significant that immediately thereafter in the next sentence, the petitioner has stated that the originals of the memorandum of understanding and the possession receipt have been already filed on record by the petitioner on 10.11.2010 with list of documents (Exh.13). The two sentences read together clearly demonstrate that the petitioner was referring to the memorandum of understanding dated 05.02.2008 valued at Rs. 50,00,000/-, since the original of the said document was already placed on record by him. When the two sentences are appreciated in the correct perspective, it becomes clear that the words “documents admitted between the parties” used in the say filed on behalf of the petitioner are referable only to the memorandum of understanding dated 05.02.2008 valued at Rs. 50,00,000/-. It cannot be interpreted to mean that the petitioner admitted the existence of the memorandum of understanding dated 05.02.2008 valued at Rs. 1.5 crores, as claimed by the respondent. This is wholly consistent with the stand taken by the petitioner in the written statement before the trial Court. 14. 50,00,000/-. It cannot be interpreted to mean that the petitioner admitted the existence of the memorandum of understanding dated 05.02.2008 valued at Rs. 1.5 crores, as claimed by the respondent. This is wholly consistent with the stand taken by the petitioner in the written statement before the trial Court. 14. Yet, the trial Court proceeded on the basis as if the petitioner in the aforesaid say filed before the trial Court admitted existence of the memorandum of understanding dated 05.02.2008 valued at Rs. 1.5 crores. As the trial Court committed this fundamental error in interpreting the pleadings on record, it proceeded on the basis that the respondent had been able to cross the first hurdle pertaining to permission to lead secondary evidence contained in Section 65(a) of the aforesaid Act. The trial Court erred in concluding that when the original not only existed but it was shown to be in possession or power or control of the petitioner, as the photocopy of the same was now placed on record by the respondent, permission for adducing secondary evidence could be granted. It is not as if the trial Court was not aware about the basic requirement of law because in the very next paragraph in the impugned order, the trial Court rejected the claim of the respondent for permission to adduce secondary evidence in respect of promissory notes because the execution of the same had been denied by the petitioner. In fact, the trial Court records that the execution of the promissory notes was denied specifically in the written statement by the petitioner. But, the trial Court failed to appreciate that the petitioner had also specifically denied the very existence of the memorandum of understanding dated 05.02.2008 valued at Rs. 1.5 crores and, therefore, there was no question of the original being either in possession or power or control of the petitioner. It appears that due to misreading of the pleadings on record i.e the plaint, written statement, the application below Exh.56 and the say filed in response thereto by the petitioner, that the trial Court committed an error of partly allowing the application filed on behalf of the respondent. 15. Since, the bare reading of the above quoted provisions of the said Act makes the position of law very clear, it would not be necessary to discuss in detail the judgments relied upon by the learned counsel for the petitioner. 15. Since, the bare reading of the above quoted provisions of the said Act makes the position of law very clear, it would not be necessary to discuss in detail the judgments relied upon by the learned counsel for the petitioner. The said judgments reiterate the position of law that emerges from the aforesaid provisions. Applying the said position of law to the facts of the present case shows that the trial Court indeed committed an error in partly allowing the application filed by the respondent. 16. Accordingly, the impugned order is found to be erroneous and it is quashed and set aside and the application at Exh.56 filed by the respondent stands dismissed. The writ petition stands allowed in the above terms. 17. Rule made absolute in the aforesaid terms with no order as to costs.