Shri Nandlal Radhomal Khatri vs Shri Chandrakant Purushottamdas ...
2016 Latest Caselaw 1040 Bom

                                                   1                          Jg.wp2350.15.odt




                                                                                        
                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                
                            : NAGPUR BENCH : NAGPUR.

                             WRIT PETITION NO. 2350 OF 2015

     Shri Nandlal Radhomal Khatri  




                                                               
     Aged : 59 years, Occ. Business, 
     R/o Dastur Nagar, Amravati.                                                   .... Petitioner

           // Versus // 




                                                
     (1) Shri Chandrakant Purushottamdas Patel 
           Aged : Adult, Occ. Business, 
                             
           R/o At present 71, Doby Road, Mendham, 
           N.J. 07945, U.S.A. through alleged 
           Power of Attorney Holder, Shri Bharatbhai 
                            
           Madhubhai Patel, Aged - Adult, 
           Occ. Business, R/o Patel Market, 
           Opp. City Kotwali, Amravati. 

     (2) Shri Prakah Mansaram Ghemnani. 
      


           Aged : 47 years, Occ. Business, 
           R/o Badnera, Tq. & Dist. Amravati.                                 .... Respondents
   



     ----------------------------------------------------------------------------------------------
     Shri S. S. Alaspurkar, Advocate for the petitioner 
     Ms. Ritu P. Jog with Shri A. C. Dharmadhikari, Advocate for the 
     respondent    no. 1





     None for respondent no. 2


                                             CORAM :  PRASANNA B. VARALE, J.

                                             DATE    :   31-3-2016.





     ORAL JUDGMENT  

Heard Shri Alaspurkar, learned counsel for the

petitioner and Ms. Jog, learned counsel appearing with Shri A. C.

Dharmadhikari, learned counsel for the respondent no. 1.

2. Rule. Rule made returnable forthwith.

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3. By the present petition, the petitioner challenges the

order passed by the learned 5th Joint Civil Judge Junior Division,

Amravati dated 5-3-2015.

4. Brief facts giving rise to the present petition can be

summarized as follows.

The petitioner is defendant no. 1 in the suit filed at the

instance of the respondent no. 1 i.e. Civil Suit No. 13/2016 for

eviction, possession and enquiry into mesne profits. It seems that in

spite of grant of sufficient opportunities to the present petitioner i.e.

defendant no. 1, the petitioner chose not to enter into the witness

box leaving no choice for the learned Judge to forfeit his right to

lead the evidence and the suit was listed for evidence of the

defendant no. 2. The petitioner thereafter sought permission to lead

the evidence and it was also granted in the interest of justice. The

petitioner then moved an application for grant of secondary evidence

under Section 65 of the Indian Evidence Act. It was the case of the

petitioner that the documents referred to in the Exhibit 84 were

misplaced by the defendant no. 1 i.e. petitioner and though the

petitioner took out search of the original document, he was unable to

trace out the original document as the document was lost. It was

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prayed to grant permission to the petitioner to lead secondary

evidence. The application was rejected by the impugned order.

5. Shri Alaspurkar, learned counsel for the petitioner

invited my attention to the document placed on record at Annexure

D-1 and submitted that the petitioner is one of the authors of the

document, namely, deed of partnership. He then submitted that the

petitioner also issued notice to demand certain documents. Learned

counsel for the petitioner submitted that it was the consistent stand

of the petitioner that the said document was in the custody and

possession of the petitioner and the same was lost during the

pendency of the suit that is from grant of permission to lead the

evidence till the application filed by the petitioner seeking grant of

leave to lead secondary evidence. The learned counsel for the

petitioner submitted that the learned Judge ought to have granted

permission to the petitioner as prayed in the application and the

respondent could also had an opportunity to cross-examine the

petitioner so as to assess the claim of the petitioner that the

document was lost not because of any fault of the petitioner.

Shri Alaspurkar, learned counsel for the petitioner submitted that

the learned Judge without adopting such a course rejected the

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application on untenable grounds.

6. Per contra, Ms. Jog, learned counsel appearing with

Shri Dharmadhikari, learned counsel for the respondent no. 1

vehemently submitted that the learned Judge in a detailed and

reasoned order rejected the application. It is submitted by Ms. Jog,

learned counsel that the attempt of the petitioner was not a bonafide

one but the attempt is only to prolong the proceedings. Ms. Jog,

learned counsel submitted that as the learned Judge rightly observed

that there was no foundation laid by the petitioner to approach the

Court seeking permission to lead secondary evidence in view of

Section 63 and 65 of the Indian Evidence Act, no fault can be found

with the order of the Court rejecting the application.

7. On the backdrop of the submissions of the learned

counsel, I have gone through the material placed on record. It is not

in dispute that the suit is initiated at the instance of the plaintiff i.e.

respondent no. 1 in the year 2006. The learned Judge by observing

the facts that more than sufficient opportunities were granted to the

petitioner/defendant no. 1, the petitioner failed to avail these

opportunities and even though the petitioner failed to avail these

opportunities, the Court granted an opportunity to lead the evidence.

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Then the learned Judge, on the backdrop of the reference to Exhibit

No. 84 wherein certain documents were referred, observed that the

petitioner/defendant no. 1 placed on record the original documents,

namely, document nos. 1 to 4 and placed a photocopy of the

document to which Shri Alaspurkar, learned counsel for the

petitioner made a reference i.e. the deed of partnership. The learned

Judge observed that the photocopy of the document was placed on

record and the document was not even notarized document. It is

further observed by the learned Judge that though the petitioner was

duty bound to place on record the original document, in view of the

provisions of Order 8 Rule 1-A(3) of the Code of Civil Procedure,

photocopies of the documents were placed on record. The petitioner

filed an application seeking permission to lead secondary evidence.

Perusal of the application shows that a statement as vague as it could

be is made in the application and the statement reads that the

original documents at serial no. 5 to 8 below Exh. 84 were misplaced

by the defendant no. 1 and that the defendant no. 1 has searched the

original documents but they are not traceable as they are lost.

Learned Judge was right in observing that the petitioner who was

approaching the Court after a period of four years post filing his

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affidavit of examination-in-chief, failed to show even a minimum

expectation of assigning the foundation so as to suggest that in spite

of due diligence of the petitioner, the document which was in the

custody and possession of the petitioner was lost and in spite of

justifiable attempts to search the document, he was unable to trace

out the said document. Considering the other factual aspect, namely

suit which is filed in the year 2006, the evidence by way of affidavit

tendered at the instance of the petitioner in the year 2010 and the

application filed at the instance of the petitioner for leading

secondary evidence in the year 2014, the apprehension expressed by

Ms. Jog, learned counsel for the respondent no. 1 that it is nothing

but an attempt to prolong the suit cannot be said to be a unjustified

apprehension.

8. Though the learned counsel for the petitioner made an

attempt to submit that the order of the learned Judge impugned in

the petition is unsustainable, in view of Sections 63 and 65 of the

Indian Evidence Act, bare perusal of the provisions of Section 65(c)

itself expects that there must be material to show that the loss of the

document is not arising from the reason, namely, default or neglect.

As stated above, the application filed at the instance of the petitioner

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is as vague as it could be and there is absolutely no material to

suggest the loss was beyond default and neglect of the petitioner.

Considering these aspects, in my opinion, the order passed by the

learned Judge needs no indulgence and the petition being meritless

deserves to be dismissed and same is, accordingly, dismissed.

                              ig                                           JUDGE
                            
     wasnik