Samadhan Devram Koli vs Shobhabai Suresh Kale And Others
2021 Latest Caselaw 3885 Bom

                                        1                     W.P. No. 9737/2015


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                               BENCH AT AURANGABAD


                      958. WRIT PETITION NO. 9737 OF 2015

         Samadhan S/o Devram Koli,
         age 65 years occup. agriculture
         R/o Pimpri Akraut Taluka Muktainagar Dist. Jalgaon
                                                        ...Petitioner
                VERSUS

 1.      Shobhabai Suresh Kale,
         age 43 years occupation household

 2.      Sanjiv Suresh Kale,
         age 27 years occupation nil

 3.      Sachin Suresh Kale,
         age 29 years occupation nil

 4.      Sonibai Suresh Kale,
         age 23 years occupation nil

         All R/o Vanjarwadi, Muktainagar (old)
         Tal. Muktainagar Dist. Jalgaon.                      ...Respondents


 Mr. V.B. Patil, Advocate for petitioner
 Mr. S. S. Thombre, Advocate for all respondents


                                            CORAM : N.J. JAMADAR, J.

                                            DATE       : 2nd March, 2021


 ORAL JUDGMENT:

1. Rule. Rule made returnable forthwith and heard finally

with the consent of the parties.

2. Challenge in this petition is to the order dated 6 th August

2015 whereby the learned Civil Judge (J.D.), Muktainagar, allowed

the application preferred by the defendants/respondents herein, for

leading secondary evidence of agreement for sale, which was lost in

transit to the office of the Collector of Stamp, to whom it was sent

for impounding under the provisions of the Maharashtra Stamp Act,

1958.

3. The defendants preferred the application seeking to lead

secondary evidence of the agreement to sell on the premise that the

original instrument was not forthcoming as it was lost in above

circumstances. The learned Trial Court found, as a matter of fact,

that the instrument was lost during the course of transmission and

the Collector of Stamp has obtained photostat copy from the

defendants, which on comparison with the photostat copy of the said

agreement (Exh. 92) corresponds with the later.

4. The learned Counsel for the petitioner assailed the

impugned order on the count that there is no clarity as to what

document was furnished by the defendants to the Collector of

Stamp, which eventually came to be impounded. The submission

does not merit acceptance for reasons more than one. Firstly, the

existence of the original instrument on the record of the Court, when

it was impounded, is incontrovertible. Secondly, the loss of the

instrument in transit to the office of the Collector of Stamp can also

be not doubted. The Trial Court has taken care to compare the copy

of the document which the defendants sought to tender with copy

of the instrument, which was already on the record of the Court.

5. It is true that copy compared with the copy of the

original cannot be tendered as a secondary evidence. However, in

the peculiar facts of the case, the original instrument was, in fact,

lost while it was custodia legis. In the circumstances, the Trial Court

was justified in allowing the defendants to tender the copy of the

lost original instrument as a secondary evidence. Thus, there is no

substance in the petition.

6. The petition stands dismissed.

7. Interim order stands vacated.

8. Rule discharged.

( N.J. JAMADAR ) JUDGE Madkar