JUDGMENT J.G. Chitre, J.
1. Respondents have been served and they are absent. None present for them. This petition has been shown in the Board as listed for final hearing. It pertains to the year 1988. The respondents are treated ex-parte and this petition is finally heard and is being decided today.
2. Mr. Solkar, counsel appearing for the petitioner, submitted that when the revision petition has been pending before the Member of M.R.T., the present petitioner moved an application on 2-3-1988 making the request to the learned Member of M.R.T. to take certified copies of the following documents on record :--
1. Application dated 24-7-1985, filed under Section 70(b) of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the Bombay Tenancy act for convenience) bearing No. 13 of 1985 which was submitted by the present petitioner in the Court of Tahsildar, A.L.T. Dapoli.
2. Depositions of 6 persons i.e. Applicant, her witnesses and landlords i.e. present respondent Nos. 2 and 3.
3. Copy of judgment and order dated 31-8-1985 passed in Application No. 13 of 1985.
4. Application dated 16-9-1986 filed under Section 32-G deposition of the Applicant. Judgment dated 14-10-1986. Notices, receipt for payment made as per the said order in Case No. ALT Tetaoli of Addl. Tahsildar Dapoli.
3-4. Shri Solkar submitted that in fact in the interest of justice and in view of the provisions of the law, the learned Member of M.R.T. should have taken these certified copies on record and should have proceeded to hear the said revision petition in accordance with the provisions of law but instead of doing that, the learned Member of M.R.T. dismissed the said application on 20-4-1988. He submitted that it being the gross error of law, this Court be pleased to issue the writ of certiorari and set aside the said order and direct the learned Member of M.R.T. to hear the said revision petition in accordance with the provisions of law by taking these certified copies on record and reading them in the evidence.
5. The learned Member in his order opined :--
"From the record of the S.D.O., it appears that the entire record of the Lower Court was found to be burnt in the fire, (page 13, dated 31-10-1986, sent by the Tahsildar, Dapoli), the opponent No. 1 in this Revision Application could not produce the certified copy of the judgment, alleged to have been passed on 31-8-1985. Neither the present applicant made any attempt to produce all these documents, which, she wants to produce now, before the Ld. S.D.O. Now the applicant wants to produce certified copies of the documents at this stage to consider these documents for deciding the issue. This cannot be done. In the first place, from the observation of the ld. S.D.O. the entire record was not then available due to fire and now, how all these documents are available, only the applicant, knows."
Shri Solkar submitted that there was no necessity of producing these documents before the learned S.D.O. because the point on which the learned S.D.O. decided the matter was different. He submitted that locus standi of Umar Nizamuddin Tetavalkar, Respondent No. 1, was the issue in controversy before the S.D.O. mainly. The judgment and order which has been passed by S.D.O. Dapoli shows that the locus standi of the present Respondent No. 1 was the pivotal point on which the learned S.D.O. directed the Tahsildar to make the enquiry. On account of that these certified copies might not have been produced before the S.D.O.
6. Section 65 of the Indian Evidence Act, 1872 provides that secondary evidence may be given of the existence, condition, or contents of a document in mentioned cases and Sub-section (c) says that when the original has been destroyed or lost, or when the party offering evidence of its contents, for any other reason not arising from his own default or neglect, produce it in reasonable time. It further provides that in case of (c) any secondary evidence of the contents of the document is admissible. In the present case, the documents which were sought to be produced were all certified copies and they were obtained immediately after the statements of the witnesses were recorded, after the said application was submitted before the Mamlatdar and after the judgment and order was passed by the Mamlatdar. When that was the case, the learned Member of M.R.T. should have exercised the jurisdiction and powers vested in the said Court in view of provisions of Section 151 of Civil Procedure Code because the Civil Procedure Code is applicable to the proceedings which are to be conducted before the Mamlatdar's Court. Section 151, Civil Procedure Code provides that nothing in this Code (C.P.C.) shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.
7. When the record of the said proceeding was burnt as the record shows and Member of M.R.T. was prevented from perusing the said record on account of its so destruction and when the certified copies of the relevant documents were available, in fact when the present petitioner was making a prayer for admitting them in record as secondary evidence, the Member of the M.R.T. should have allowed the said application in the interest of justice without thinking whether those documents were produced before the S.D.O. Dapoli or not. After all, it was his duty to do the justice in true spirit of administration of justice in the present case.
8. The learned Member has committed gross error of law in not exercising the jurisdiction which vested in him and, therefore, landed in error of passing the order by which the said application was preferred by the present petitioner was dismissed. Therefore, this Court finds it necessary to set aside the said error of law by issuing the writ of certiorari in favour of the petitioner as prayed for by her. Therefore, the present writ petition is hereby allowed. The order which has been assailed by this writ petition passed by the learned Member of the M.R.T. on 20-4-1988 stands set aside. The Member of M.R.T. at Bombay is hereby directed to take the certified copies mentioned in the said application moved in Revision Application No. TEN. A. 89 of 1987 and to decide it in accordance with the provisions of law as early as possible. The record be dispatched as early as possible to the M.R.T. Bombay. Parties are directed to remain present before the M.R.T. Bombay on 16-1-2002.
9. The parties to act on an ordinary copy of this judgment duly authenticated by the Private Secretary of this Court.