Ganesh S/O Ramanna Atturkar And ... vs Sanjay Mansingh Jadhav
2018 Latest Caselaw 518 Bom

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                                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                                  NAGPUR BENCH : NAGPUR


                                                       WRIT PETITION NO.4868/2017

1.         Ganesh S/o Ramanna Atturkar,
           aged about 50 Yrs., Occu. Agriculturist.                                                                                                           ..Deleted.

2.         Sanjay S/o Ramanna Atturkar,
           aged about 54 Yrs., Occu. Agriculturist. 

           Both R/o Deulgaon Raja, 
           Tah. Deulgaon Raja, Distt. Buldhana.                                                                                                               ..Petitioners.

                          ..Vs..

           Sanjay Mansingh Jadhav, 
           aged about 54 Yrs., R/o Deulgaon Raja,
           Near Hanuman Mandir, Tah. Deulgaon 
           Raja, Distt. Buldhana.                                                                                                                    ..Respondent.
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            Shri N.R. Saboo, Advocate for the petitioners.
            Shri A.J. Thakkar, Advocate for the respondent.
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                                                                 CORAM :  Z.A. HAQ, J.

                                                                 DATE  :     16.1.2018.
                                                       



ORAL JUDGMENT

1. Heard Shri N.R. Saboo, Advocate for the petitioners and Shri A.J.

Thakkar, Advocate for the respondent.

2. Rule. Rule made returnable forthwith.

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3. The learned Advocate for the petitioners states that the civil suit in

which impugned order is passed was filed by the petitioner No.1 and petitioner

No.2, however, after filing of the present writ petition the petitioner No.1 has

withdrawn from the civil suit and the civil suit is being prosecuted by the

petitioner No.2. The Advocate for the petitioners seeks permission to delete

the name of petitioner No.1. Permission granted.

4. The petitioner has challenged the order passed by the trial Court

rejecting the application (Exh. No.88) filed by the petitioner / plaintiff praying

that the certified copy of sale-deed dated 22 nd April, 1937 be accepted and read

in evidence. In support of the prayer, the petitioner has relied on Section 90 of

the Indian Evidence Act.

5. The trial Judge has rejected the application (Exh. No.88) observing

that the presumption under Section 90 of the Indian Evidence Act would be

attracted if the original document is filed, and as the certified copy is obtained

by the plaintiff in 2004 and as it is not more than 30 years old, the presumption

under Section 90 of the Indian Evidence Act would not be attracted.

I find that the impugned order is proper and it does not suffer from

any illegality or error of jurisdiction which necessitates interference by this

Court in the extra-ordinary jurisdiction.

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6. At this stage, the Advocate for the petitioner / plaintiff has pointed

out that the trial Court has granted permission to the plaintiff to lead secondary

evidence as per Section 65 of the Indian Evidence Act, in respect of the

certified copy of the sale-deed dated 22nd April, 1937. It is submitted that the

plaintiff would take steps to lead secondary evidence on the above document

and then the question of drawing presumption as per Section 90 of the Indian

Evidence Act as far as execution of sale-deed dated 22 nd April, 1937 can be

considered. This submission made on behalf of the petitioner / plaintiff is

justified and the plaintiff can take steps as suggested above by the Advocate for

the petitioner / plaintiff.

With the above clarification, the writ petition is disposed. In the

circumstances, the parties to bear their own costs.

JUDGE

Tambaskar.