Bombay High Court
Nemsinha Ganeshsinha Rajpurohit ... vs Sunil Malsi Jain on 26 August, 2016
Bench: T.V. Nalawade
WP No. 1102/2016
1
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
WRIT PETITION NO. 1102 OF 2016
Shri. Nemsinha Ganeshsinha Rajpurohit,
Age Major, Occupation Business,
R/o. Vardhaman Housing Society,
Ward No. 1, In front of Dr. Aghase Hospital,
Shrirampur, Dist. Ahmednagar,
through his power of attorney holder
Shri. Babusingh Motisingh Rajpurohit,
Age 38 years, occu. Business,
R/o. C/o. Bhagwati Sweet Mart, 168,
Ground Floor, Navi Peth, M.G. Road,
In front of Nath Plaza, Jalgaon,
Dist. Jalgaon. ....Petitioner
Versus
Shri. Sunil Malsi Jain,
Age 61 years, Occu. Business,
R/o. 168, Navi Peth, M.G. Road,
Jalgaon, Tal. & Dist. Jalgaon. ....Respondent.
...
Advocate for Petitioner : Yawalkar Siddharha B.
Advocate for Respondents : S.S. Bora
...
CORAM : T.V. NALAWADE, J.
DATED : 26th August, 2016.
JUDGMENT :
1) Rule. Rule made returnable forthwith. By consent,
heard both the sides for final disposal.
2) The proceeding is filed to challenge the order made
on Exh. 27 in Regular Civil Suit No. 202/2013.
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3) It appears that Nemsinha has filed suit for relief of
declaration that he is tenant in the shop premises. In the said
suit, Sunil, owner of the property has filed counter claim for
possession by contending that the possession of Nemsinha is as
licencee and not as a tenant.
4) By filing the aforesaid application, plaintiff prayed for
giving direction to defendant Sunil to produce the document as
under :-
"3.1 Three Original agreements,
A) for the period from 1/4/2009 to 28/2/2010,
B) Second agreement for the period from
1/4/2011 to 31/3/2012,
C) Third agreement for the period from
21/6/2012 till 20/6/2013.
3.2 Details of deposit amount, how defendant
Sunil Malsi Jain, appropriated in his accounts, on
the basis of agreement referred to in his written
statement and counter claim with all necessary
book entries, credits to his bank account, etc."
5) After hearing both the sides, the Trial Court rejected
the application. It appears that the document described as 3.1
(C) is already on record. Other two documents 3.1 (A) and 3.1
(B) are not on record, but they are registered documents and
WP No. 1102/2016
the Court has observed that as they are registered documents,
certified copy, copy brought on the record, secondary evidence
can be given in respect of those transactions. Defendant Sunil
has contended that these documents are not in his possession.
As these documents are registered documents and Sunil,
defendant is not admitting the possession of the documents,
when he ought to have been in possession, in ordinary course,
the Court ought to have considered the prayer of plaintiff
Nemsinha to grant permission to lead secondary evidence. It
appears that though some observations are made to the effect
that Nemsinha is entitled to lead evidence, permission is not
granted to lead secondary evidence. In view of these
circumstances, this Court holds that to that extent the
application at Exh. 27 ought to have been allowed and so,
interference is warranted.
6) So far as 3.2 is concerned, the learned counsel for
petitioner submitted that prayer in respect of 3.2 is conceded.
7. In view of these circumstances, the petition is partly
allowed. The order made by the learned Judge of the Trial Court
in respect of rejection of the application filed for granting
WP No. 1102/2016
permission to lead secondary evidence is hereby set aside.
Permission is granted to lead secondary evidence in respect of
documents 3.1 (A) and (B) only. The Trial Court is expected to
decide the suit within a period of one year from the date of
receipt of the order.
Rule is made absolute in aforesaid terms.
ssc/
ig [ T.V. NALAWADE, J. ]
