ORDER : S.R. KRISHNA KUMAR, J. This petition by defendant Nos.2 and 3 in O.S.No.32/2010 on the file of the Prl. Civil Judge & JMFC, Hoskote, is directed against the impugned common order passed on I.As. by the Trial Court allowing the applications filed by the respondents – plaintiffs to reopen the evidence of the plaintiff and by recalling PW1 and for permission to mark Photostat copy of the Edurukararupatra / re- conveyance deed as secondary evidence in support of their respective claim. 2. Heard learned counsel for the petitioners and learned counsel for the caveator – respondent No.1 and perused the material on record. 3. A perusal of the material on record will indicate that respondent Nos.1 and 2 – plaintiffs instituted the aforesaid suit against the petitioners – defendant Nos.2 and 3 and other defendants for permanent injunction and other reliefs in relation to the suit schedule immovable property. The said suit is being contested by the defendants. The plaintiffs having adduced evidence, the matter was posted for evidence of defendants and at the stage of cross-examination of PW1, plaintiffs filed three applications viz.,. (i) Application to reopen the evidence of the plaintiff (ii) Application to recall PW1 and permit the plaintiff to mark Photostat copy of the Edurukararupatra / re-conveyance deed and (iii) Application under Section 66 of the Indian Evidence Act for permission to permit the plaintiff to produce Photostat copy of the Edurukararupatra / re-conveyance deed as secondary evidence. 4. The said applications having been opposed by the petitioners – defendant Nos.2 and 3, the Trial Court proceeded to pass the impugned common order allowing all the three applications, aggrieved by which the petitioners are before this Court by way of the present petition. The impugned common order passed by the Trial Court is as under: “COMMON ORDERS ON APPLICATION FILED UNDER SECTION 151 OF THE CODE OF CIVIL 13 to PROCEDURE, 1908 AND APPLICATION UNDER ORDER XVIII RULE 17 OF THE CODE a OF CIVIL PROCEDURE, 1908 AND 666)02 APPLICATION UNDER SECTION 63B OF THE INDIAN EVIDENCE ACT, 1872 READ WITH SECTION 151 OF THE CODE OF CIVIL PROCEDURE, 1908 Plaintiffs have filed the application under Section 151 of the Code of Civil Procedure, 1908 (Hereinafter referred to as C.P.C., for brevity) seeking to re-open the evidence of the plaintiff. Plaintiffs have filed the application under Order XVIII Rule 17 of CPC seeking to recall PW.1 and permit them to mark photocopy of Edurukararupatra / re-conveyance deed. Plaintiffs have filed the application under Section 63(B) of the Indian Evidence Act, 1872 (Hereinafter referred to as 'IE Act’, for brevity) seeking to permit him to produce photocopy of Edurukararupatra/re-conveyance deed as secondary evidence. 2. It is averred in the affidavit annexed to the applications that in the year 2004 the plaintiffs approached the defendant No.1 and availed a hand loan of Rs.1,00,000/-. At the time of the advancement of the loan amount, defendant No.1 insisted that the plaintiffs execute a sale deed for security purposes and defendant No.1 promised to reconvey the property by executing an re- conveyance deed after the repayment of the said loan. As such, the plaintiffs executed the sale deed instead of a mortgage deed in favour of defendant No.1 and in turn, defendant No.1 executed Edaru Kararu Patra on the same day. Subsequently, defendant No.1 retained all original documents with him. Thereafter, the plaintiffs repaid the entire loan amount to defendant No.1. Despite the repayment of the loan amount, defendant No.1 failed to execute a re-conveyance deed. The original of Edaru Kararu Patra is not with the custody of the plaintiffs and same is in the custody of the defendant No. 1. Now, defendant No.1 is denying the custody of the original Edaru Kararu Patra and as such, they intend to mark the Edaru Kararu Patra as secondary evidence. With these, the plaintiffs prayed to allow the applications. 3. On the other hand the defendant No.2 and 3 resisted the applications by filing common objection and specifically contended that the applications are not maintainable either in law or on facts. The applications are filed at a highly belated stage and evidence of the plaintiffs was closed way back. The applications are filed only to prolong the proceedings. These defendants categorically denied the alleged Edaru Kararu Patra said to be executed by defendant No.1 and no such deed was executed. The alleged Edaru Kararu Patra is unregistered one and cannot be looked into. Therefore, the defendant No.2 and 3 prayed to dismissal of the applications. 4. The points that would arise for consideration are:- 1. Whether the applications are deserves to be allowed? 2. What order? 5. Heard. 6. The alleged Edaru Kararu Patra is unregistered one and cannot be looked into. Therefore, the defendant No.2 and 3 prayed to dismissal of the applications. 4. The points that would arise for consideration are:- 1. Whether the applications are deserves to be allowed? 2. What order? 5. Heard. 6. The learned counsel for the plaintiff, in support of his arguments, has relied upon the following decision: 1. 2016 (16) SCC 483 - Rakesh Mohindra-Vs-Anita Beri and Others. 2 C.R.P. (PD) No.2771/2014 dated 24.11.2017 of Hon'ble High Court Madras - Pitchai (Deceased) -Vs- P. Raji and Others; 7. My answer to the above said points are as follows: Point No.1: In the Affirmative; Point No.2: As per final order for the following REASONS 8. Point No.1:- After hearing and careful perusal of the application, objection and materials placed on record the plaintiffs have filed the present application praying to reopen the evidence of the plaintiffs and permit them to mark photocopy of Edurukararupatra/re-conveyance deed as secondary evidence. It is the specific case of the plaintiffs that in the year 2004 they have approached the defendant No.1 and availed a hand loan of Rs.1,00,000/-. At the time of the advancement of the loan amount, defendant No.1 insisted them to execute a sale deed for security purposes, and he promised to reconvey the property by executing an re-conveyance deed after the repayment of the said loan. As such, they have executed the sale deed instead of a mortgage deed in favour of defendant No.1 and in turn, defendant No.1 executed Edaru Kararu Patra on the same day. despite the repayment of the loan amount, defendant No 1 failed to execute a re-conveyance deed. The original of Edaru Karáru patra is in the custody of the defendant No.1. Now, defendant No.1 is denying the custody as well as execution of the Edaru kararu Patra. On the other hand the defendant No2 and 3 denied the execution of the alleged Edaru Kararu Patra and specifically contended that the alleged Edaru Kararu Patra is unregistered one and cannot be looked into. 9. The learned counsel for the plaintiffs submitted that the defence of the defendants is blanket denial. The document in question is in existence and proof of the document in question is subject to trial. 9. The learned counsel for the plaintiffs submitted that the defence of the defendants is blanket denial. The document in question is in existence and proof of the document in question is subject to trial. The plaintiffs have complied the statutory requirement as envisaged under Order XVI of CPC and Section 66 of the Evidence Act. The defendants nowhere claimed that the document in question is forged or created one. A proper stamp duty has been paid under the agreement. The police complaint given by the plaintiffs is sufficient foundation to adduce secondary evidence. As such, he prayed to allow the application. To fortify his arguments, has relied upon one decision. Counter to that, the learned counsel for the defendants argued that there is no pleading in respect of the custody of the original proposed document and the plaint does not depict a foundation with respect to the alleged document. The plaintiff has not given any notice in respect of the alleged document during the lifetime of defendant No.1. The document sought to be marked is insufficiently stamped and unregistered. Therefore, it cannot be looked into any purpose. The plaintiff has not placed any materials to substantiate that he has made efforts, as claimed. As such, he prayed reject the same. 10. When the matter was posted for cross-examination of DW.1, at this stage the plaintiff has filed the present applications. It is the specific contention of the plaintiff that the original of the proposed documents is with the custody of the defendants and they have evasively denied the same. Therefore, marking of the proposed document is very much necessary to prove the case of the plaintiff. I have carefully and cautiously gone through the document now sought to be marked. During the proceedings, the plaintiff has filed the application under Order XVI Rule 6 of CPC seeking summon the original re-conveyance deed from the custody of the Lrs of defendant No.1. The said application is allowed and Lrs of defendant No.1 remained absent. It is just and necessary to refer provisions of the Registration Act, 1908 particularly, Section 17 and 49 of the Registration Act, 1908, which is being reproduced below:- 17. The said application is allowed and Lrs of defendant No.1 remained absent. It is just and necessary to refer provisions of the Registration Act, 1908 particularly, Section 17 and 49 of the Registration Act, 1908, which is being reproduced below:- 17. Documents of which registration is compulsory.- (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and it they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:- (a) instruments of gift of immovable property; (b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property; (c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation , declaration, assignment, limitation or extinction of any such right, title or interest; and (d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent: (e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent of the value of one hundred rupees and upwards, to or in immovable property: Provided that the State Government may, by order published in the Official Gazette, exempt from the operation of this sub- section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees. (1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 (48 of 2001) and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A (2) Nothing in clauses (b) and (c) of sub-section (1) applies to- (1) any composition deed, or (ii) any instrument relating to shares in a joint stock Company, notwithstanding that the assets of such Company consist in whole or in part of immovable property; or (iii) any debenture issued by any such Company and not creating. declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except in so far as it entitles the holder to the security afforded by a registered instrument whereby the Company has mortgaged, Conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or (iv) any endorsement upon or transfer of any debenture issued by any such Company, or (v) any document other than the documents specified in sub- section (1A) not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property. but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest, or (vi) any decree or order of a Court 2 [except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding; or (vii) any grant of immovable property by 3 (Government); or (viii) any instrument of partition made by a Revenue-Officer, or (ix) any order granting a loan or instrument of collateral se- curity granted under the Land Improvement Act. 1871, or the Land Improvement Loans Act, 1883, or (x) any order granting a loan under the Agriculturists, Loans Act, 1884, or instrument for securing the repayment of a loan made under that Act, or 4 (xa) any order made under the Charitable Endowments Act, 1890 (6 of 1890), vesting any property in a Treasurer of Charitable Endowments or divesting any such Treasurer of any property, or (xi) any endorsement on a mortgage-deed acknowledging the payment of the whole or any part of the mortgage-money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage, or (xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue-Officer. [Explanation. A document purporting or operating to effect a contract for the sale of immovable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest money or of the whole or any part of the purchase money.) (3) Authorities to adopt a son, executed after the 1st day of January, 1872, and not conferred by a will, shall also be registered. 49. Effect of non-registration of documents required to be registered. No document required by section 17 1 [or by any provision of the Transfer of Property Act, 1882 (4 of 1882)], to be registered shall- (a) affect any immovable property comprised therein, or (b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered: [Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877) or as evidence of any collateral transaction not required to be effected by registered instrument. 11. The above provisions manifests compulsory registration of kinds of documents and effect of non-registration of registrable documents. 11. The above provisions manifests compulsory registration of kinds of documents and effect of non-registration of registrable documents. It is worth to refer decision of the Hon'ble High Court of Rajasthan in the case of Bhikkilal & Others -Vs- Smt. Shanti Devi & Others reported in 2008 SCC OnLine Raj 23, wherein the Hon'ble High Court held at para No.9 that Whether a non-testamentary document in respect of immovable properties is compulsorily registrable or not depends on the facts, and circumstances and the terms of the document. No hard and fast rule can be laid down. The crucial test in each case is as to the nature of the document itself, if it does create a right, title or interest in itself, whether in present or in future, it is compulsory registrable u/s.17(1)(b). However, if by itself it does not create any right but visualises creation or extinction of a right by some other document, then it falls squarely within the ambit of S. 17(2)(v) and, hence, not registrable. In the instant case, the agreement in dispute was a simple agreement to reconvey property under certain conditions mentioned therein and, thus, was not compulsorily registrable. Under the circumstances, even provisions of section 92(4) of the Evidence Act are not applicable in the present case. In view of above ratio, the document now sought to be produced is also simple agreement to recovery property. Therefore, nothing bars to mark the proposed document in evidence. It is worth to refer decision of Hon'ble Apex Court in the case of J. Yashoda - Vs- K. Shobha Rani reported in (2007) 5 SCC 730 wherein the Hon'ble Apex Court held at para No.7 that Secondary evidence, as a general rule is admissible only in the absence of primary evidence. If the original itself is found to be inadmissible through failure of the party, who files it to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contents. It is further held at para No.8 that Essentially, secondary evidence is an evidence which may be given in the absence of that better evidence which law requires to be given first, when a proper explanation of its absence is given. The definition in Section 63 is exhaustive as the Section declares that secondary evidence "means and includes" and then follow the five kinds of secondary evidence. The definition in Section 63 is exhaustive as the Section declares that secondary evidence "means and includes" and then follow the five kinds of secondary evidence. It is further held at para No.9 that the rule which is the most universal, namely that the best evidence the nature of the case will admit shall be produced, decides this objection that rule only means that, so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it. Section 65 deals with the proof of the contents of the documents tendered in evidence. In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. Under Section 64, documents are to be provided by primary evidence. Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said Section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the Section. In the case on hand, the plaintiff has complied with Section 65 of the Evidence Act. Therefore, there is no embargo to mark the photocopy of the Edaru Kararu Patra for a just decision of the suit. It is settled law that mere marking of a document does not tantamount to proof of a document. The reasons assigned in the applications are justified and made out a prima-facie to allow the applications. If the applications are allowed, no way prejudice to the defendants. If any prejudice will be caused to the defendants same may be compensated by imposing cost on the plaintiff. In view of above, I answer point No. 1 in the 'Affirmative' 12. Point No.2: In view of discussion and the findings arrived at point No.1, I proceed to pass the following: ORDER Application filed under Section 151 of the Code of Civil Procedure, 1908 and application under Order XVIII Rule 17 of CPC and application under Section 66(b) of the Indian Evidence Act, 1872 are allowed on cost of Rs.500/-. Point No.2: In view of discussion and the findings arrived at point No.1, I proceed to pass the following: ORDER Application filed under Section 151 of the Code of Civil Procedure, 1908 and application under Order XVIII Rule 17 of CPC and application under Section 66(b) of the Indian Evidence Act, 1872 are allowed on cost of Rs.500/-. Consequently, evidence of plaintiff is re-opened and permitted to adduce further chief examination by: 28/10” 5. A perusal of the material on record including impugned order will indicate that the same does not contain any illegality or infirmity nor can the same is said to have caused any prejudice or occasioned failure of justice particularly when all rival contentions between the parties regarding admissibility, proof, relevance, probative value, etc. of the alleged Photostat copy of Edurukararupatra / re-conveyance deed, which would necessarily have to be decided by the Trial Court in accordance with law after considering the rival contentions of both parties and permit the petitioners – defendant Nos.2 and 3 to cross-examine the plaintiff – PW1 in relation to the said Edurukararupatra / re-conveyance deed also. 6. Under these circumstances, in the light of the judgment of the Apex Court in the case of Radhey Shyam Vs. Chhabi Nath - (2015) 5 SCC 423 , I am of the view that the impugned order cannot be said to have suffer from any illegality or infirmity nor can the same is said to have caused any prejudice or resulted in miscarriage of justice warranting interference by this Court in exercise of its jurisdiction under Article 227 of the Constitution of India, as held by the Apex Court in the cases of Radhey Shyam Vs. Chhabi Nath - , K.P. Natarajan Vs. Muthalammal – AIR 2021 SC 3443 and Mohamed Ali Vs. V. Jaya & others – (2022) 10 SCC 477 . 7. In the result, I pass the following: ORDER (i) The petition is hereby disposed of without interfering with the impugned order. (ii) Respondents – plaintiffs are permitted to recall PW1 and produce and mark the alleged Photostat copy of the Edurukararupatra / re-conveyance deed dated 19.05.2004 as an exhibit in support of their claim subject to the condition that all rival contentions between the plaintiffs and defendants as regards admissibility, proof, relevance, probative value, etc. (ii) Respondents – plaintiffs are permitted to recall PW1 and produce and mark the alleged Photostat copy of the Edurukararupatra / re-conveyance deed dated 19.05.2004 as an exhibit in support of their claim subject to the condition that all rival contentions between the plaintiffs and defendants as regards admissibility, proof, relevance, probative value, etc. of the alleged Photostat copy of Edurukararupatra / re-conveyance deed are kept open to be decided by the Trial Court in accordance with law. (iii) Trial Court is directed to dispose of the suit as expeditiously as possible preferably within a period of six months from the date of receipt of a copy of this order.