Shankar Kalu Patil vs Suresh Bajirao Patil And Others
2016 Latest Caselaw 2050 Bom

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             IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                        BENCH AT AURANGABAD




                                                                          
                         WRIT PETITION NO.4442 OF 2016




                                                  
     Suresh Bajirao Patil                                           PETITIONER
     Age - 53 years, Occ - Agriculture




                                                 
     R/o At Post Warkhede, Taluka - Chalisgaon
     District - Jalgaon




                                     
              VERSUS
     1.
                             
              Shankar Kalu Patil
              Age - 65 years, Occ - Nil
              R/o At Post Laxmi Nagar,
                                                              RESPONDENTS


              Chalisgaon, Taluka - Chalisgaon
                            
              District- Jalgaon

     2.       Bajirao Kalu Patil,
              Deceased through Legal Heirs
      


     3.       Pratap Kalu Patil,
   



              Age: 51 years, Occu: Agriculture,

     4.       Parvatabai Kalu Patil,
              Age: 80 years, Occu: Household





              All above R/o At/Post: Warkhede,
              Tal: Chalisgaon, Dist: Jalgaon

     5.       Sau. Bhanubai Ganpat Patil
              Since deceased through heirs on record





              A] Nanabhau Ganpat Patil,
                 Age: 53 years, Occu: Agriculture,

              B] Shri Dayaram Ganpat Patil,
                 Age: 48 years, Occu: Agriculture,


              C] Sudam Ganpat Patil




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                   Since deceased through Heirs




                                                                            
              C-1] Shri Kailas Sudam Patil
                   Age: 32 years, Occu: Agriculture




                                                   
              C-2] Kapur Sudam Patil
                   Age: 28 years, Occu: Agriculture




                                                  
              C-3] Anjanabai Sudam Patil,
                   Age: 60 years, Occu: Household

                       All above R/o At/Post Kherde,
                       Tal. Chalisgaon, Dist. Jalgaon




                                        
              C-4] Sunita Suresh Patil,
                             
                   Age: 30 years, Occu: Household
                   R/o: At/Post: Wadi (Shewale),
                   Tal. Pachora, Dist. Jalgaon
                            
              D]       Popat Ganpat Patil
                       Age: 34 years, Occu: Agriculture,
                       R/o: At/Post: Kherde,
                       Tal. Chalisgaon, Dist. Jalgaon
      


              E]       Durgabai Rajdhar Patil
   



                       Age: 58 years, Occu: Household,
                       R/o: At/Post: Raver, Tal. Raver,
                       Dist: Jalgaon





              F]       Jankabai Nathu Patil,
                       Age: 55 years, Occu: Household,
                       R/o: At/Post: Galan, Tal. Pachora,
                       Dist. Jalgaon

              G]       Anusayabai Govind Patil,





                       Age: 45 years, Occu: Household,
                       R/o. At/Post: Morane, Dhule,
                       Tq. & Dist: Dhule

              H]       Smt. Yashoda Pitambar Sonawane
                       Age: 40 years, Occu: Household,
                       R/o. Chandsar, Tq. Dharangaon (Erandol),
                       Dist. Jalgaon




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              I]       Manik Keshav Patil,




                                                                           
                       Age: 54 years, Occu. Agriculture,

              J]       Dipak Manik Patil,




                                                   
                       Age: 30 years, Occu: Agriculture,

              K]       Shri. Kiran Manik Patil,
                       Age: 38 years, Occu: Agriculture,




                                                  
                       All above R/o: Tarangana,
                       Sane Guruji Nagar, Chalisgaon,
                       Tal. Chalisgaon, Dist. Jalgaon




                                        
     6.       Smt. Vaijabai Pandit Patil,
              Since deceased through LR's
                             
     6A]      Shri Narayan Pandit Bhosale (Patil),
              Age: 50 years, Occu: Agriculture,
                            
     6B]      Shri. Raghunath Pandit Bhosale (Patil),
              Age: 35 years, Occu: Agriculture,
              Both R/o: Daregaon, Tal. Chalisgaon,
              Dist: Jalgaon
      


     6C]      Sumanbai Laxman Patil
   



              Age: 45 years, Occu: Household,
              R/o. Bodhagaon, Tal & Dist. Dhule

     6D]      Shobha Ramesh Pawar,





              R/o: Dhamangaon, Tal. Chalisgaon,
              Dist: jalgaon

     6E]      Vimalbai Kashinath Patil (Pawar),
              Age: 48 years, Occu: Household,
              R/o: Bhoras, Tal. Chalisgaon,





              Dist: Jalgaon

     7.       Smt. Sarubai Gajmal patil
              Age: 50 years, Occu: Household,
              R/o: Dhamnar, Tal. Sakri, Dist. Dhule


     8.       Gangubai wd/o Babulal Patil




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              Since deceased through Legal Heirs




                                                                         
     8A]      Shobhabai Arjun Kachave
              Age: 50 years, Occu: Household,
              R/o: Padalde, Tal. Malegaon,




                                                 
              Dist: Nashik

     8B]      Amruta Sukadeo Pawar,
              Age: 30 years, Ocu: Household,




                                                
              R/o. Ganraj Society, Near Water Tank,
              Alandi Road, At/Post: Bhosari, Pune.

     8C]      Jayshree Dagadu Saindane (Patil),
              Age: 26 years, Occu: Household,




                                     
              R/o: Sant Tukaram Nagar, Moriya Colony,
              Shinde Chal, Alandi Road, Bhosari, Pune
                             
     8D]      Nisha Ajit Chavan (Patil),
              Age: 28 years, Occu: Household,
                            
              R/o: At/Post: Nimgul, Tal & Dist. Dhule

     8E]      Mahesh Arjun Kachave (Patil),
              Age: 25 years, Occu: Agriculture,
              R/o: Padalde, Tal. Malegaon, Dist. Nashik
      


     8F]      Jijabai Krushna Kachave (Patil),
   



              Age: 45 years, Occu: Household,

     8G]      Suvarna Shivaji Patil,
              Age: 25 years, Occu: Household,





              Both R/o: Ratan Chwk, Plot No.554,
              Nava Nagar, Surat (Gujarat)

     8H]      Kavita Sandeep Patil,
              Age: 23 years, Occu: Household,
              R/o. Thakur Galli, Dondaicha,





              Tal. Shindkheda, Dist. Dhule

     8I]      Gita Dnyaneshwar Patil,
              Age: 21 years, Occu: Household,
              R/o. Survey No.35/1, Nalvade Park,
              Chinchavade Nagar, Nandanwan,
              Chinchwad, Pune




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     8J]      Sunita Vijay Pawar
              Age: 20 years, Occu: Household,




                                                                          
              R/o. Lonawade, Tal. Malegaon,
              Dist. Nashik.




                                                  
     8K]      Bhushan Krushna Kachave (Patil),
              Age: 19 years, Occu: Education,
              R/o: Ratan Chowk, Plot No.554,
              Nava Nagar, Surat (Gujarat)




                                                 
     8L]      Meenabai Baliram Kachave (Patil),
              Age: 44 years, Occu: Household,
              R/o. Padalde, Tal. Malegaon,
              Dist. Nashik




                                     
     8M]      Yogita Samadhan Kadam
                             
              Age: 24 years, Occu: Agriculture,
              R/o. Nimgul, Tal. Malegaon,
              Dist. Nashik
                            
     8N]      Sheetal Baliram Kachave (Patil),
              Age: 19 years, Occu: Household,
              R/o. Padalde, Tal. Malegaon,
              Dist. Nashik.
      


     8O]      Kalabai @ Annapurna Pralhad More,
   



              Age - 55 years, Occ - Household
              R/o At Post Nimgul, Taluka and District - Dhule

     8P]      Kasubai Jibhau Patil,





              Age - 50 years, Occ - Household
              R/o At Post Nimgul,
              Taluka and District - Dhule

     9.       Uttam Bajirao Patil,
              Age - 40 years, Occ - Agriculture





     10.      Sakubai wd/o Bajirao Patil,
              Age - 60 years, Occ - Household
              Both R/o At Post Warkhede (Bk)
              Taluka - Chalisgaon,
              District - Jalgaon

     11.      Keshav Pratap Patil (Warkhedekar)




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              Age - 40 years, Occ - Agriculture
              R/o Udesing Anna Gurha Nirman Society,




                                                                          
              Dhule road, Chalisgaon, Taluka - Chalisgaon
              District - Jalgaon




                                                  
     12.      Hirakan Nanabhau Patil,
              Age - 55 years, Occ - Household
              R/o Kherde, Post - Lonaje,
              Taluka - Chalisgaon, District - Jalgaon




                                                 
     13.      Sunanda Deoram Patil,
              Age - 49 years, Occ - Household
              R/o At post Goradkhede, Taluka - Pachora,
              District - Jalgaon




                                     
     14.      Mangal Yuvraj Patil,
                             
              Age - 46 years, Occ - Household
              R/o At post Ronje, Taluka - Erandol
              District - Jalgaon
                            
     15.      Vilas Ramesh (Shravan) Kadekar,
              Ag e- 37 years, Occ - Agriculture
              R/o At Post Warkhede (Bk)
              Taluka - Chalisgaon
      


              District - Jalgaon
   



     16.      Krushna Prabhakar Chudhari,
              Age - 32 years, Occ - Agriculture
              R/o At Post Londhe, Taluka - Chalisgaon
              District - Jalgaon





     17.      Sandeep Ratilal Chaudhari,
              Age - 28 years, Occ - Agriculture
              R/o Londhe, Taluka - Chalisgaon
              District - Jalgaon





     18.      Kailas Himmat Patil,
              Age - 35 years, Occ - Agriculture
              R/o Chinchagavan, Taluka - Chalisgaon
              District - Jalgaon

     19.      Deelip Eknath Patil,
              Age - 37 years, Occ - Agriculture
              R/o Chinchagavan, Taluka - Chalisgaon




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              District - Jalgaon




                                                                          
     20.      Ramesh Raghunath Rathod,
              Age - 35 years, Occ - Agriculture
              R/o Londhe (Krushnapuri)




                                                  
              Taluka - Chalisgaon,
              District - Jalgaon

     21.      Meena Keshav Patil,




                                                 
              Age - Adule, Occ - Agriculture / Household
              R/o Warkhede, Taluka - Chalisgaon
              District - Jalgaon

     (Respondents No.2 to 21 stand deleted




                                    
     at the request of learned advocate for
     the petitioner)          ig    .......
     Mr. Shailesh P. Brahme, Advocate for the petitioner
                            
     Mr. S.S.Kulkarni h/f Mr.P.D.Bachate, Adv. for respondent No.1
                                    .......

WITH

WRIT PETITION NO.4778 OF 2016

Shankar Kalu Patil PETITIONER Age: 65 years, Occu: Nil, Through his GPA Girish Shankar Patil,

Age: Major, Occ: Agri, R/o: At/Post: Laxmi Nagar, Chalisgaon, Tal. Chalisgaon, Dist: Jalgaon

VERSUS

1. Suresh Bajirao Patil, Age: 53 years, Occu: Agriculture,

2. Bajirao Kalu Patil, Deceased through Legal Heirs

3. Pratap Kalu Patil, Age: 51 years, Occu: Agriculture,

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4. Parvatabai Kalu Patil,

Age: 80 years, Occu: Household

All above R/o At/Post: Warkhede,

Tal: Chalisgaon, Dist: Jalgaon

5. Sau. Bhanubai Ganpat Patil Since deceased through heirs on record

A] Nanabhau Ganpat Patil, Age: 53 years, Occu: Agriculture,

B] Shri Dayaram Ganpat Patil,

Age: 48 years, Occu: Agriculture,

C] Sudam Ganpat Patil Since deceased through Heirs

C-1] Shri Kailas Sudam Patil Age: 32 years, Occu: Agriculture

C-2] Kapur Sudam Patil

Age: 28 years, Occu: Agriculture

C-3] Anjanabai Sudam Patil, Age: 60 years, Occu: Household

All above R/o At/Post Kherde,

Tal. Chalisgaon, Dist. Jalgaon

C-4] Sunita Suresh Patil, Age: 30 years, Occu: Household R/o: At/Post: Wadi (Shewale), Tal. Pachora, Dist. Jalgaon

D] Popat Ganpat Patil Age: 34 years, Occu: Agriculture, R/o: At/Post: Kherde, Tal. Chalisgaon, Dist. Jalgaon

E] Durgabai Rajdhar Patil Age: 58 years, Occu: Household,

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R/o: At/Post: Raver, Tal. Raver, Dist: Jalgaon

F] Jankabai Nathu Patil, Age: 55 years, Occu: Household,

R/o: At/Post: Galan, Tal. Pachora, Dist. Jalgaon

G] Anusayabai Govind Patil,

Age: 45 years, Occu: Household, R/o. At/Post: Morane, Dhule, Tq. & Dist: Dhule

H] Smt. Yashoda Pitambar Sonawane

Age: 40 years, Occu: Household, R/o. Chandsar, Tq. Dharangaon (Erandol),

Dist. Jalgaon

I] Manik Keshav Patil,

Age: 54 years, Occu. Agriculture,

J] Dipak Manik Patil, Age: 30 years, Occu: Agriculture,

K] Shri. Kiran Manik Patil, Age: 38 years, Occu: Agriculture,

All above R/o: Tarangana, Sane Guruji Nagar, Chalisgaon, Tal. Chalisgaon, Dist. Jalgaon

6. Smt. Vaijabai Pandit Patil, Since deceased through LR's

6A] Shri Narayan Pandit Bhosale (Patil), Age: 50 years, Occu: Agriculture,

6B] Shri. Raghunath Pandit Bhosale (Patil), Age: 35 years, Occu: Agriculture, Both R/o: Daregaon, Tal. Chalisgaon, Dist: Jalgaon

6C] Sumanbai Laxman Patil Age: 45 years, Occu: Household,

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R/o. Bodhagaon, Tal & Dist. Dhule

6D] Shobha Ramesh Pawar, R/o: Dhamangaon, Tal. Chalisgaon, Dist: jalgaon

6E] Vimalbai Kashinath Patil (Pawar), Age: 48 years, Occu: Household, R/o: Bhoras, Tal. Chalisgaon,

Dist: Jalgaon

7. Smt. Sarubai Gajmal patil Age: 50 years, Occu: Household, R/o: Dhamnar, Tal. Sakri, Dist. Dhule

8. Gangubai wd/o Babulal Patil

Since deceased through Legal Heirs

8A] Shobhabai Arjun Kachave

Age: 50 years, Occu: Household, R/o: Padalde, Tal. Malegaon, Dist: Nashik

8B] Amruta Sukadeo Pawar,

Age: 30 years, Ocu: Household, R/o. Ganraj Society, Near Water Tank,

Alandi Road, At/Post: Bhosari, Pune.

8C] Jayshree Dagadu Saindane (Patil), Age: 26 years, Occu: Household,

R/o: Sant Tukaram Nagar, Moriya Colony, Shinde Chal, Alandi Road, Bhosari, Pune

8D] Nisha Ajit Chavan (Patil), Age: 28 years, Occu: Household, R/o: At/Post: Nimgul, Tal & Dist. Dhule

8E] Mahesh Arjun Kachave (Patil), Age: 25 years, Occu: Agriculture, R/o: Padalde, Tal. Malegaon, Dist. Nashik

8F] Jijabai Krushna Kachave (Patil), Age: 45 years, Occu: Household,

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8G] Suvarna Shivaji Patil, Age: 25 years, Occu: Household,

Both R/o: Ratan Chwk, Plot No.554, Nava Nagar, Surat (Gujarat)

8H] Kavita Sandeep Patil, Age: 23 years, Occu: Household, R/o. Thakur Galli, Dondaicha, Tal. Shindkheda, Dist. Dhule

8I] Gita Dnyaneshwar Patil, Age: 21 years, Occu: Household, R/o. Survey No.35/1, Nalvade Park, Chinchavade Nagar, Nandanwan,

Chinchwad, Pune

8J]

Sunita Vijay Pawar Age: 20 years, Occu: Household, R/o. Lonawade, Tal. Malegaon,

Dist. Nashik.

8K] Bhushan Krushna Kachave (Patil), Age: 19 years, Occu: Education, R/o: Ratan Chowk, Plot No.554,

Nava Nagar, Surat (Gujarat)

8L] Meenabai Baliram Kachave (Patil), Age: 44 years, Occu: Household, R/o. Padalde, Tal. Malegaon, Dist. Nashik

8M] Yogita Samadhan Kadam Age: 24 years, Occu: Agriculture, R/o. Nimgul, Tal. Malegaon, Dist. Nashik

8N] Sheetal Baliram Kachave (Patil), Age: 19 years, Occu: Household, R/o. Padalde, Tal. Malegaon, Dist. Nashik.

8O] Kalabai @ Annapurna Pralhad More, Age - 55 years, Occ - Household R/o At Post Nimgul, Taluka and District - Dhule

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8P] Kasubai Jibhau Patil,

Age - 50 years, Occ - Household R/o At Post Nimgul, Taluka and District - Dhule

9. Uttam Bajirao Patil, Age - 40 years, Occ - Agriculture

10. Sakubai wd/o Bajirao Patil, Age - 60 years, Occ - Household Both R/o At Post Warkhede (Bk) Taluka - Chalisgaon, District - Jalgaon

11. Keshav Pratap Patil (Warkhedekar)

Age - 40 years, Occ - Agriculture R/o Udesing Anna Gurha Nirman Society, Dhule road, Chalisgaon, Taluka - Chalisgaon

District - Jalgaon

12. Hirakan Nanabhau Patil, Age - 55 years, Occ - Household R/o Kherde, Post - Lonaje,

Taluka - Chalisgaon, District - Jalgaon

13. Sunanda Deoram Patil, Age - 49 years, Occ - Household R/o At post Goradkhede, Taluka - Pachora, District - Jalgaon

14. Mangal Yuvraj Patil, Age - 46 years, Occ - Household R/o At post Ronje, Taluka - Erandol District - Jalgaon

15. Vilas Ramesh (Shravan) Kadekar, Ag e- 37 years, Occ - Agriculture R/o At Post Warkhede (Bk) Taluka - Chalisgaon District - Jalgaon

16. Krushna Prabhakar Chudhari, Age - 32 years, Occ - Agriculture

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R/o At Post Londhe, Taluka - Chalisgaon District - Jalgaon

17. Sandeep Ratilal Chaudhari, Age - 28 years, Occ - Agriculture

R/o Londhe, Taluka - Chalisgaon District - Jalgaon

18. Kailas Himmat Patil,

Age - 35 years, Occ - Agriculture R/o Chinchagavan, Taluka - Chalisgaon District - Jalgaon

19. Deelip Eknath Patil,

Age - 37 years, Occ - Agriculture R/o Chinchagavan, Taluka - Chalisgaon

District - Jalgaon

20. Ramesh Raghunath Rathod,

Age - 35 years, Occ - Agriculture R/o Londhe (Krushnapuri) Taluka - Chalisgaon, District - Jalgaon

21. Meena Keshav Patil, Age - Adule, Occ - Agriculture / Household

R/o Warkhede, Taluka - Chalisgaon District - Jalgaon

.......

Mr. Sanket S. Kulkarni, Advocate for the petitioner Mr. Shailesh P. Brahme, Advocate for respondent No.1 .......

[CORAM : SUNIL P. DESHMUKH, J.]

DATE : 29th APRIL, 2016

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard finally with

{14} wp4442-16

consent of learned advocates for the appearing parties.

2. At the outset, Mr. Brahme, learned advocate appearing for

petitioner in writ petition No.4442 of 2016 on instructions seeks

leave to delete respondents No.2 to 21. Leave granted at the risk

and peril of the petitioners.

2. Both these petitions have been moved against a common

order dated 21st March, 2016 passed on Exhibits-611 and 613 in

Regular Civil Suit No.313 of 1976. Writ petition No.4442 of 2016

has been filed by defendant No.9 in the suit, whereas writ

petition No.4778 of 2016 has been filed by the plaintiff. By

common order on Exhibits-611 and 613, Joint Civil Judge, Junior

Division, Chalisgaon has partially allowed application Exhibit-611

permitting to lead secondary evidence of certified copy of a sale

deed filed as document No.4 pursuant to a list appended to

Exhibit-595. [Said document is referred to at serial No.1 in the

table contained in the impugned order] Consequently, rest of the

requests under application Exhibit-611 for allowing to lead

secondary evidence in respect of documents from serial No.2 to

6 as have been referred to in table appearing in the order, stand

rejected. As far as application Exhibit-613 is concerned, it has

been rejected. None of the petitioners have challenged order on

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Exhibit-613. As such, both writ petitioners are considered

together for decision by this common order.

3. Writ petition No.4442 of 2016 at the instance of defendant

No.9 is against dis-allowance of leading secondary evidence in

respect of documents at serial No.3 to 6 in the table appearing in

the impugned order, whereas, writ petition No.4778 of 2016 is

against allowance of application Exhibit-611 to the extent

permitting defendant No.9 to lead secondary evidence in respect

of document No.4 from the list appended to Exhibit-595. [Said

document is referred to at serial No.1 in the table contained in

the impugned order]

4. After hearing learned advocates for the parties, the

position which emerges is that the suit has been instituted by

the plaintiff seeking partition, possession and injunction in

respect of the properties referred to in the plaint. Whereas

defendant No.9 resisted the suit contending that the same being

not tenable for non inclusion of all the properties viz., the ones

which have been purchased from the income of joint family

property. According to defendant No.9, said properties were as

per the list appended to Exhibit-595 and that the originals of the

documents could not be procured despite efforts. The plaintiff,

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despite order for production of original sale deeds of properties

which were purchased by the plaintiff and also the ones in the

name of his wife and sons, had failed to produce originals on

record, filing fallacious affidavit before the court and as such,

application Exhibit-611 had been moved for allowing defendant

No.9 to lead secondary evidence in respect of aforesaid

documents and application Exhibit-613 had been moved for

taking action for willful disobedience of the order of the court.

Petitions are not ig concerned with order on application Exhibit-

613.

5. The plaintiff had filed say to Exhibits-611 and 613 stating

that the applications are false and frivolous. In his affidavit he

has submitted that he is not in possession of documents of sale

in favour of his wife and sons, whereas documents at serial No.4

in the list appended to Exhibit-595 may be in his possession.

6. While deciding application Exhibits-611 and 613, the court

has recorded events as they occurred, in paragraph No.7 of the

impugned order viz.,

"7.Before I embark further, it is necessary to make reference to the other applications and details of proceeding which took place in the present matter. It has direct bearing on the merits of present application. Defendant No.9 had also filed application below Exhibit-591 and 953 for leading secondary evidence. As the application was vague, this

{17} wp4442-16

application (Exhibit-593) was rejected in limine. In the application (Exhibit-591) generalized submission was made that the plaintiff had

purchased number of properties from the income of the ancestral property. Again, generalized submission was made that the plaintiff be

directed to file the copies of these sale transactions. The details of properties was not mentioned in this application (Exhibit-591). It is further prayed therein that, if, the plaintiff fails to produce, the

permission for leading secondary evidence be given. This application (Exhibit-591) was decided to the extent of first part i.e. for production of documents, if any. The plaintiff was called upon to file affidavit in

prescribed form. Accordingly, the plaintiff filed affidavit below Exhibit-

596. He stated that the documents which are in the name of his sons and wife are not in his possession or power. There is no clear reference about the document mentioned in Sr. No.1 of above table. Nevertheless, it has

to be said that there is compliance of the Court order. Furthermore, application (Exhibit-591) was not finally decided to the extent of second prayer of leading secondary evidence. Be as it may, so one thing is very

clear that there is no willful non-compliance of the Court order"

7. The court has taken note of that the document mentioned

at serial No.2 in the order had not been placed on record and

further went on to consider that as far as documents at serial

No.3 to 6 as given in the table appearing at pages No.3 and 4 of

the impugned order annexed to the writ petition, were not

executed by plaintiff and plaintiff had stated that they are not in

his possession and power. The court purported to consider legal

provision as contained in sections 58, 65 and 130 of the Indian

Evidence Act and had quoted section 65 of the Evidence Act.

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The court considered that since the documents from serial No. 3

to 6 given in the table cannot be said to be in power or

possession of the plaintiff, application Exhibit-611 seeking

permission to lead secondary evidence in respect of those

documents is not tenable and since document at serial No.1 from

the table is in possession of the plaintiff, request for leading

secondary evidence in respect of the same can be considered

and as such, went on to allow application Exhibit-611 to the

extent of document No.1 from the table and rest of the prayers

were rejected.

8. Mr. Brahme, learned advocate for defendant No.9

vehemently submits that the impugned order fails to take into

account full purport of section 65 of the Evidence Act in spite of

having been quoted the same, which clearly refers to that

secondary evidence of documents would be available, if the

original is shown or appears to be in possession or power of any

person out of reach or not subject to process of court, taking

into account clause (a) of section 65 of the Evidence Act. This

particular aspect having been overlooked, the impugned order

has been rendered untenable. A valuable right in favour of

defendant No.9 is being smothered in the process. He further

submits that this is gravely prejudicial to his claims in the suit.

{19} wp4442-16

He, therefore, submits that the order ex facie is untenable.

9. Countering these submissions, Mr. Sanket Kulkarni, learned

advocate appearing for the plaintiff submits that looking at the

conduct of defendant No.9, who had ample time all through the

pendency of the suit, had not moved making such application,

however, it is at the fag end of the trial, when the plaintiff had

completed his evidence, such an application has been moved. He

submits that the impugned order as far as rejection of request in

respect of documents at serial No.3 to 6 from the table in the

order is concerned is unimpeachable. However, it had been error

on the part of the court to allow secondary evidence in respect of

document at serial No.1 from the table in the impugned order.

He submits that in view of framing of issues, particularly issue

No.13, which is in respect of tenability of the suit, having regard

to the defence been taken by defendant No.9, suit being not

tenable for non inclusion of all the alleged properties, in such a

case, the application which has been belatedly moved, should

not have been given any regard to and ought to have been

rejected straight away.

10. Although respective parties have argued as aforesaid, law

as has been quoted under section 65 of the Evidence Act may

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play a significant role in the matter. It is not the case of the

parties that the documents at all are non existing. As a matter of

fact, certified copies of the documents in the list appended to

Exhibit-595 have been produced, save document at serial No.2

from table in the impugned order. It is indisputable position that

original sale deeds are not in possession of defendant No.9 and

that the proceedings hitherto clearly give an indication that

procedure contemplated under sections 65 and 66 of the

Evidence Act for production of the originals from the plaintiff in

whose possession the documents were, reasonably expected to

have been asked to be produced. The court, upon such a request

had directed the plaintiff to file affidavit. The plaintiff had filed an

affidavit referring to that original of document at serial No.1 is in

his possession, however, originals of documents No.2 to 6 are

not in his possession. In the circumstances, it emerged that

existence of documents is not disputed and the situation would

be covered by section 65 sub section (a) of the Evidence Act,

wherein said document appears to be out of reach of defendant

No.9 and in possession of persons, who are not subject to the

process of the court. The court, while passing the order, appears

to have overlooked this aspect in respect of section 65 and has

considered only partially that document does not appear to be in

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possession and power of the plaintiff and thus request of

permitting to lead secondary evidence cannot be considered.

11. However, looking at the provisions of section 65 of the

Evidence Act itself, the consideration by trial court appears to be

half-way. The application Exhibit-611, therefore, will have to be

considered keeping in view the provisions of section 65 of the

Act and the object underlying the same. The reason which has

detained the court from refusing to accede to the request of

secondary evidence of documents at serial No.3 to 6 appears to

be incongruous with the provisions of law. Application Exhibit-

611, therefore deserves a positive consideration and deserves to

be allowed.

12. In view of aforesaid consideration, request being made

under writ petition No.4778 of 2016 is difficult to be considered.

Writ petition No.4778 of 2016, therefore, stands dismissed. Rule

stands discharged in the same.

13. Application Exhibit-611 in Regular Civil Suit No.353 of 1976

pending before Civil Judge, Junior Division, Chalisgaon stands

allowed in respect of documents at serial No.1 and 3 to 6 as

given in the table at pages No.3 and 4 in the impugned order.

Writ petition No.4442 of 2016, as such, stands allowed. Rule is

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made absolute in terms of prayer clause "D" to aforesaid extent.

14. Having regard to that the suit is of 1976, it would be

expedient that the same would be proceeded with expeditiously.

[SUNIL P. DESHMUKH, J.]

drp/wp4442-16