ORDER A.H. Joshi, J.
1. Rule. Returnable forthwith by consent of parties. Heard finally.
2. During pendency of regular Civil Appeal No. 106 of 2000, the Appellant filed application (Exh. 17), apparently under Rule 27 of Order 41 of Civil P. C. It contained a prayer for permission to file document, namely Earnest Note, dated 12th May, 19.86.
3. Admittedly, a xerox copy of this document was on record in the Trial Court, and was marked as Article "A".
4. In this application, what is stated reads as follows:
"The original Isar Patta (Earnest Note) was misplaced and could not be traced out in spite of diligent efforts and as such, the original one was not filed on record in the lower Court. Now the original Earnest Note has been traced out. The said document is material one and goes to the root of the case"
5. In second para of the application, a mutation entry, which is a public document, is sought to be produced. No explanation, whatsoever, is incorporated in it towards failure to file that document.
6. Application (Exh. 17) was rejected by the Lower Appellate Court by Order, dated 8th January, 2004. While rejecting the application, the learned Judge observed as follows:
"Further there is no material evidence on record led by the appellant to show that the original earnest note was lost or was misplaced."
7. The reason recorded by the learned Appellate Judge is that no material is placed on record to lead evidence to show that the original was lost.
8. In fact, a bare statement of the person on affidavit who was required to file that document and prove said fact, that 'the document was lost', would ordinarily be the evidence on said fact. Therefore, some other evidence than a bare statement may not be necessary to prove that document was lost. Question of trustworthiness of such document is a different question. Such affidavit can always be opposed by opposite party's knowledge contrary to the said story of loss of document.
9. Therefore, on the facts of case, the reasons adopted by the learned Appellate Judge do not appeal to be legal and proper and need to be set aside.
10. Learned Advocate for the petitioner pointed out that while he should urge upon setting aside of Order, dated 8th January, 2004, he would elect to seek liberty from this Court to withdraw application (Exh. 17) filed in Regular Civil Appeal No. 106 of 2000, for enabling the Appellant to file the application with proper pleadings, duly signed by the plaintiff and supported by an affida vit of the appellant himself, or the person who knows the fact of loss and subsequent discovery of the document.
11. In view of this matter, it would not be necessary, at this stage, to allow application (Exh. 17) though this Court has reached the conclusion that Order, dated 8th January, 2004, requires to be set aside, and is being set aside.
12. In this situation, the Rule is made absolute as follows:
a) The Order, dated 8th January, 2004, passed below Exh. 17, is set aside.
b) Petitioner is permitted to withdraw application (Exh. 17) filed in Regular Civil Appeal No. 106 of 2000, with liberty to file a fresh application for production of the same document under the signature of the Appellant and affidavit of the witness of facts sought to be proved.
c) Parties shall bear respective costs.