Bombay High Court
Santosh S/O Motilalji Sahu vs Neha Ramkishor Sharma on 7 June, 2016
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.5148 OF 2015
PETITIONER: Santosh S/o Motilalji Sahu, Aged
about 42 years, Occ. Business, R/o
(Ori. Plaintiff)
Masanganj, Amravati.
-VERSUS-
RESPONDENT: Neha Ramkishor Sharma, Aged about
27 years, Occ. Service, R/o Pannalal
(Org. Defendant)
Nagar, Behind Sudha Coaching
Classes near Shiv Mandir Amravati.
Shri A. M. Sudame, Advocate for the petitioner.
Respondent served.
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CORAM: A.S. CHANDURKAR, J.
DATED: 07
th JUNE, 2016.
ORAL JUDGMENT :
1. Though the respondent has been duly served, she has
not chosen to enter appearance and contest proceedings.
2. The challenge in the present writ petition is to the
order passed by the trial Court below Exhibit-44 rejecting the
prayer made by the petitioner for permission to lead secondary
evidence.
3. The petitioner is the original plaintiff who has filed suit
for specific performance of an agreement dated 26-11-2009. The
plaintiff initially gave a notice to produce an agreement dated
27/8/2009 as per the application below Exhibit-20. The defendant
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filed her reply stating that no such document was available with
her. The petitioner then moved an application for grant of
permission to lead secondary evidence on the ground that the
original agreement had been torn and only a copy was available.
By the impugned order, the said application has been rejected.
4. It is to be noted that the issues in R.C.S. No.7/2013 are
yet to be framed. The loss of the document in question or its non-
availability for the purposes of provisions of Section 65 of the
Evidence Act, 1872, is yet to be brought on record. It appears that
the application below Exhibit-44 has been moved prematurely. In
this background, Shri A. M. Sudame, the learned Counsel for the
petitioner by relying upon the judgment of learned Single Judge in
Suresh Vs. Parag 2016(2) Mh.L.J. 437 submits that unless a party
leads evidence to prove loss of the original document or its non-
existence, the prayer for secondary evidence cannot be considered.
He submits that the application below Exhibit-44 ought to have
been kept pending till such evidence was led. In Suresh (Supra), it
has been held that unless a party enters a witness box and is
subjected to cross examination, the aspect of loss of the original
document or its non-availability cannot be concluded. It is further
observed that in such circumstances after the evidence in that
regard is brought on record, the prayer for grant of permission to
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lead secondary evidence can be considered.
5. In view of aforesaid, it is held that the application
below Exhibit-44 deserves to be considered by the trial Court
afresh after the petitioner proves the loss/non-availability of the
original agreement dated 27-8-2009. For said reason, the
impugned order dated 28-7-2015 is liable to be set aside.
6. Accordingly, the following order is passed:
(1) The order dated 28-7-2015 passed below Exhibit-44 is
set aside.
(2) The application below Exhibit-44 is restored and the
same should be considered in the light of the provisions of Section
65 of the Evidence Act, 1872 after the loss/non-availability of the
agreement dated 27-8-2009 is proved.
(3) Rule is made absolute in aforesaid terms with no order
as to costs.
JUDGE
//MULEY//
