Bombay High Court
Navnath Manik Gholap And Others vs Padminbai Rokdoba Sunape on 26 July, 2017
Bench: S.P. Deshmukh
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drp
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.3871 OF 2017
1. Navnath s/o Manik Gholap PETITIONERS
Age - 36 years, Occ - Business
R/o Nanded Naka, Latur
Taluka and District - Latur
2. Shivaji s/o Bapusing Thakur
Age - 36 years, Occ - Business,
R/o Moti Nagar, Latur
Taluka and District - Latur
3. Santosh s/o Trimbak Pete,
Age - 36 years, Occ - Service
R/o Nanded Naka, Latur
Taluka and District - Latur
VERSUS
Padminbai w/o Rokdoba Sunape RESPONDENT
Age - 62 years, Occ - Household,
R/o Bhatangali,
Taluka and District - Latur
.......
Mr. T. M. Venjane h/f Mr. Aninkya Reddy, Advocate for petitioners
.......
[CORAM : SUNIL P. DESHMUKH, J.]
DATE : 26th JULY, 2017
ORAL JUDGMENT :
1. Heard learned advocate for the petitioners.
2. Petitioners purport to take exception to order dated 20 th
October, 2016 passed by civil judge, junior division, Latur on
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Exhibit-149 in Regular Civil Suit No. 447 of 2010, allowing
secondary evidence in respect of sale deed, certified copy of
which is already placed on record. It further transpires that
original sale deed is stated to be in possession of third person, to
whom witness summons had been issued, however, yet, copy
had not been placed on record.
3. Trial judge, while allowing application Exhibit-149 has
observed in paragraph No. 4 of the impugned order, thus-
" 4. Heard both the sides. Perused record of the case.
The matter is posted for plaintiffs evidence since last 10
months. No evidence has been led as the plaintiff. She has
applied for the summons to the witness for production of
sale deed. The record shows that steps have taken by the
plaintiff to secure production of sale deed no. 108/2000. On
08/02/2916 as per order below Exh.42, production of
summons was issued. The report of Bailiff Exh. 48 shows
that witness Shaikh refused to accept summons. It is argued
on behalf of defendants that, permission to lead secondary
evidence cannot be granted as witnesses has not refused to
produce sale deed. In this regard it can be safely said that
refusal of witness accept summon itself amounts to refusal
to produce the document. Therefore there is no force in the
argument that the witness never refused to produce
document. "
4. Section 65 (c) of the Indian Evidence Act, reads thus -
" 65. Cases in which secondary evidence relating to
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documents may given - Secondary evidence may be given
of the existence, condition or contents of a document in the
following cases:-
(a) ......
(b) ......
(c) when the original has been destroyed or lost, or
when the party offering evidence of its contents cannot, for
any other reason not arising from his own default or
neglect, produce it in reasonable time; "
5. Having regard to aforesaid and in view of section 65 (c) of
the Indian Evidence Act, 1872, it does not appear that trial judge
has committed any error in passing impugned order.
6. Writ petition, as such, is devoid of any substance and the
same stands dismissed.
[SUNIL P. DESHMUKH, J.]
drp/wp3871-17
