Ranchod Pandya vs Om Enterprises And Ors
2021 Latest Caselaw 2783 Bom

                                                                   38.248.21 wpst.doc

ISM
                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                CIVIL APPELLATE JURISDICTION

                             WRIT PETITION (ST) NO. 248 OF 2021

      Ranchod Pandya                                              ....Petitioner

              V/s.

      M/s. Om Enterprises and others                              .....Respondents

      Mr. Ranjit Thorat Senior Advocate a/w Mr. Sanket Mangale a/w Mr.
      Umesh Taurani a/w Mr. Hrishikesh Maskikar i/b M/s. S.
      Ashwinikumar & Co. LLP for the Petitioner
      Mr. Abhishek Walawalkar for Respondent nos. 3 & 4


                               CORAM :   NITIN W. SAMBRE, J.

                               DATE:     FEBRUARY 11, 2021.

      P.C.:

      1]      Heard respective counsel at length.




      2]      Petitioner-Plaintiff initiated a Suit seeking declaration that the

conveyance dated 05/06/2007 executed unilaterally by Defenant Nos.

1, 2, 3 & 4 in their favour based on the cancelled Power of Attorney

dated 29/03/1994 which is claimed to have been cancelled and the

development Agreement dated 29/03/1994 was executed without

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knowledge and his consent and that being so it is null and void and

not binding. A ground of practicing fraud in execution of document is

also pressed in support of prayer for declaring the same as null and

void. After the trial in the Suit has commenced, the Petitioner-

Plaintiff submitted in his examination-in-chief at Exh. 9 and

alongwith same, he has fled compilation of document at Exh. 10 &

11. It is claimed that Petitioner canvassed his arguments on the

admissibility of the documents produced in the compilation being at

Exh. 10 & 11. Though certain documents were admitted by

Respondent nos. 1, 3 & 4, since the original of the said documents

was not produced and the Petitioner failed to lead secondary evidence

in support of the said documents, the Court below refused to exhibit

the said documents vide order dated 17/01/2019.

3] In the aforesaid background, additional affdavit of evidence

Exh. 22 was submitted so as to lead further evidence including

secondary evidence alongwith additional compilation of documents at

Exh. 23. On the said affdavit, after the arguments, Court has passed

an order on 20/03/2019 refusing to exhibit and admit certain

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documents. As such, this Petition.

4] Shri. Thorat, learned senior counsel, by inviting attention of

this Court to the provisions of Evidence Act particularly Chapter 5

and also provisions pertaining to the production of the registered

copy, would urge that, the order impugned is required to be set aside

to the extent of not admitting certifed copies of the documents as are

mentioned in Exh. 10, 11 & 23. Learned counsel would invite

attention of this Court to nature of the said documents so as to claim

presumption as to genuineness and that being so it is also urged that

affdavit placed on record depicting suffcient material to lead

secondary evidence should have been accepted. As such, learned

senior counsel would urge that order impugned is not sustainable

and is liable to be quashed and set aside.

5] Counsel for Respondent supported the order impugned and

submits that provisions of Chapter 5 of the Evidence Act can be

invoked only in case if the original is not available. According to him,

secondary evidence can be a certifed copy, however, once it is

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admitted by the Petitioner that original of the same is very much

available, in such an eventuality, the Court was justifed in rejecting

the same.

6]     Considered rival submissions.




7]     Chapter 5 of the Evidence Act deals with documentary

evidence. Under Section 61 contents of the documents can be proved

through primary or secondary evidence. Primary evidence means

document itself for the inspection of the Court whereas secondary

evidence means certifed copies, counterparts of documents. Section

64 makes an exception to Section 63 i.e. secondary evidence which

provides that document must be proved by primary evidence except

in the cases mentioned in the said Chapter.

8] Admittedly, document of which certifed copies are produced are

not in the possession of the Respondent but it is admitted that such

documents are available. The Trial Court taking note of the same has

safeguarded the interest of the Petitioner pursuant to the provisions

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of Evidence Act and the Code of Civil Procedure, 1908 in the matter

of production of same. That being so, the Court below was justifed in

refusing the prayer of the Petitioner for accepting certifed copies in

view of availability of the originals.

9] Apart from above, what can be noticed from the submissions

canvassed by the learned counsel for the Petitioner are, the Petitioner

intends to take recourse to the shortcuts, bypassing express

provisions of Chapter 5 of the Evidence Act. Though it is claimed that

these certifed copies can be termed as public document within the

meaning of Sub-Section 2 of Section 74 of the Evidence Act, however,

considering the nature of dispute involved in the suit, production of

the original as ordered by the Trial Court appears to be quite

justifed. As far as record in the electronic form is concerned,

provisions of the Indian Evidence Act particularly Section 65B and

the Judgment of the Apex Court in the matter of Arjun Panditrao

Khotkar Vs. Kailash Kushanrao Gorantyal and Ors [(2020) 7 SCC 1]

is worth referring to.

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10] City Civil Court on 17/01/2019 has already passed a speaking

order on Exh. 11 in the matter of accepting documents and that

being so, the claim that Trial Court has not considered documents as

mentioned in Exh. 11 to be proved or not proved is contrary to the

record.

11] I have perused the said order dated 17/01/2019 in relation to

prayer in accepting documents as mentioned in Exh. 11. Petitioner

has prayed for accepting xerox copies or documents which are not

original and that being so, order passed on list of documents on Exh.

11 does not warrant any consideration as order appears to be in tune

with provisions of Chapter 5 of the Evidence Act.

12] Apart from above, as regards the documents in Exh. 10 & 23

are concerned, the Trial Court in detail considered each of the

document and has passed an order in relation to the same either

accepting/exhibiting the document or by rejecting the same based on

nature of evidence produced before the Court viz. photostat, carbon

copy etc. As such, order of Trial Court in rejecting the prayer of the

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Petitioner to lead secondary evidence and also refusing to exhibit

documents in absence of their original appears to be justifed and in

tune with the Evidence Act.

13] No case for interference is made out. Petition as such fails,

stands dismissed.

[NITIN W. SAMBRE, J.]