Kashalkar Creations, A ... vs Dilip Sampatrao Wase And Another
2016 Latest Caselaw 3015 Bom

                                                                                                                                            wp1982-15




                                                                                                                                          
                                                                                 1

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY, 




                                                                                                      
                           NAGPUR BENCH, NAGPUR
                                             WRIT PETITION No.1982 OF 2015




                                                                                                     
    Kashalkar Creations,A proprietary Concern,
    through its Proprietor 
    Shri Viayak Sharadchandra Kashalkar,
    Age 52 years, r/o Tilakwadi, Yavatmal




                                                                               
    Tq. and Distt. Yavatmal.        ...          ...                                                                   ...                      Petitioner.

                     ..Versus..
                                                 
    1. Shri Dilip Sampatrao Wase,
                                                
       Aged 4 years, Occu. Petition Writer, 
       R/o Lashkari Bagh, Nagpur, 
       Sub Registrar's Office Premises, 
       Mahal, Nagpur. 
        


    2. Bharatiya Gruha Samasya Nirwaran Sanstha
       Reg. No. 225/81, a Co-operative Society 
     



       through its President Mate Chowk, Gopal Nagar,
       Nagpur or C/o Shir Ishwarsingh Gopalsingh 
       Chandel, Qtr. No. 5/4, Raghuji Nagar, 
       Nagpur-24.                    ...          ...                                                                  ...      Respondents. 





    .......................................................................................................................................................

Mr. A.V. Bhide, advocate for petitioner.

None for the respondents.

.......................................................................................................................................................

                                                            CORAM                 :  A.S. CHANDURKAR, 
                                                                                                         J.
                                                            DATED                 :  20 th
                                                                                            JUNE,
                                                                                                  2016.

    ORAL JUDGMENT.

In view of notice for final disposal, the learned counsel for the

petitioner has been heard by issuing Rule and making it returnable forthwith.

.....2/-

wp1982-15

The respondents though served with notice for final disposal

have not chosen to contest the present proceedings. The petitioner/original

plaintiff in Special Civil Suit No. 593/2012 is aggrieved by the order passed

by the trial court rejecting the application for permission to lead secondary

evidence.

In the suit filed by the petitioner, the relief sought is with regard

to specific performance of the contract by which the defendants were to

execute a sale deed in his favour. The plaintiff served a notice on the

defendant no.1 to produce the document which was sale deed dated

3.9.1983. This sale deed was executed by the defendant no.2 in favour of

Pyarasingh Jogi. There was no response from the defendant no.2 to the

aforesaid notice. The plaintiff, therefore, filed an application below Exh. 35

for permission to lead secondary evidence but the said application has been

rejected.

It is submitted by Shri Bhide, the learned counsel for the

petitioner, that a notice to produce the said sale deed was served on the

defendant no. 2 under Section 66 of the Indian Evidence Act, 1876 ( for

short, the Act). The said document was not produced. The purchaser of the

aforesaid property was not traceable and he had left for Punjab. Since the

purchaser was aged about 54 years when the sale deed was executed on

.....3/-

wp1982-15

3.9.1983, it was likely that the said purchaser may not be alive. He,

therefore, submitted that the application in question deserves to be allowed.

In the reply filed on behalf of defendant no.2 to the aforesaid

application in the trial court it was stated that the said Pyarasingh Jogi was

required to be examined instead of seeking permission to lead secondary

evidence.

Having perused the documents placed on record, it is not in

dispute that initially a notice to produce the aforesaid sale deed was issued to

the defendant no.2 who had executed the said document which was not

produced. Under provisions of Section 65(a) of the said Act, as the purchaser

of the property was not traceable and document in question was not

produced by the defendant no.2,despite notice being given under Section 66

of the said Act, a case for grant of permission to lead secondary evidence

was clearly made out. The trial court was not justified in rejecting the

application only on the ground that the suit was pending for leading

evidence. It was not necessary for the plaintiff to summon the said purchaser

as a witness.

In the light of aforesaid discussion, the following order is

passed.

(i) The order passed below Exh. 35 dated 2.12.2014 is set aside.

.....4/-

wp1982-15

(ii) The application Exh. 35 is allowed and the plaintiff is permitted

to lead secondary evidence with regard to sale deed dated 3.9.1983.

(iii) Writ petition is allowed in above terms.

    (iv)               No costs.




                                                     
                                                                         JUDGE 

    Hirekhan
                                     
                                    
       
    






                                                                                                   ...../-