Shri. Ramdas Bhiva Salve And Anr vs Dnyandev Laxman More And Ors
2021 Latest Caselaw 14628 Bom

                                                            1/3
                                                                                   (20)J-WPST-28859-19.doc


                                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
         Digitally
         signed by
         RAJSHREE
RAJSHREE KISHOR
KISHOR   MORE                               CIVIL APPELLATE JURISDICTION
MORE     Date:
         2021.10.06
         14:22:58
         +0530                            WRIT PETITION(S) NO.28859 OF 2019


                      1.       Shri Ramdas Bhiva Salve                   ]
                               Age : 58 Years, Occ. Business,            ]
                               R/at : Survey No.64, Kondhwa Budruk       ]
                               Pune.                                     ]

                      2.       Mrs. Sunanda Ramdas Salve                 ]
                               Age : 52 Years, Occ. Housewife,           ]
                               R/at : Survey No.64, Kondhwa Budruk       ]
                               Pune.                                     ]    ..      Petitioners

                                            vs.
                      1.       Dnyandev Laxman More                      ]
                               Age : 72 years, Occ. Retired,             ]
                               R/at : Tarade Colony, Sinhgad Road,       ]
                               Vithalwadi, Pune - 411 051.               ]

                      2.       Shri Santosh Dnyandev More                ]
                               Age : 46 years, Occ. Retired,             ]
                               R/at : Tarade Colony, Sinhgad Road,       ]
                               Vithalwadi, Pune - 411 051.               ]

                      3.       Shri Mahadev Krishnaji Badade          ]
                               Age : 57 years, Occ. Agriculture,      ]
                               R/at : Kondhwa Budruk, Pune - 411 048. ]       ..      Respondents


                      Mr.Prathamesh Bhargude a/w Sumit Sonare, for the Petitioners.
                      Mr.Pradip J. Thorat a/w Aniesh Jadhav for Respondent Nos.1 and 2.


                                                CORAM                :   N.R.BORKAR, J.
                                                 RESERVED ON         :   7TH SEPTEMBER 2021.
                                                 PRONOUNCED ON : 6TH OCTOBER 2021.


                      rkmore                                  1/3
                                         2/3
                                                               (20)J-WPST-28859-19.doc


JUDGMENT :

1] This petition takes an exception to the order dated 04.09.2019 passed by learned 5th Joint Civil Judge, Senior Division, Pune, below Exhibit 226 in Special Civil Suit No.1812/2007 .

2] Respondent Nos.1 and 2 herein filed suit against the present petitioners and respondent No.3 for specific performance of contract on the basis of Agreement to Sell dated 28.06.2005. A photocopy of the Notary Register of registration No.1158 dated 04.03.2008 was produced on the record of trial Court on behalf of the petitioners. By application at Exhibit 226, the petitioners sought permission to lead secondary evidence in respect of photocopy of Notary register. The trial Court rejected the said application by the order impugned.

3] I have heard the learned counsel for the petitioners and learned counsel for respondent Nos.1 and 2.

4] It is submitted on behalf of the Petitioners that the application was moved for production of the original Notary Register. It is submitted that the said application was allowed and summons for production of the Notary register was issued to the concerned Notary. It is submitted that pursuant to the said summons the concerned Notary appeared before the learned trial Court and intimated to the trial Court that the concerned original register is not traceable. It is submitted that, thus application at Exhibit 226 was moved seeking permission to lead secondary evidence in respect of the photocopy of the Notary Register and it be marked exhibit. It is submitted that considering the facts and circumstances, the trial Court ought to have allowed the application at Exhibit 226. It is submitted that

rkmore 2/3

(20)J-WPST-28859-19.doc

the order of the trial Court needs to be set aside and permission to lead secondary evidence needs to be granted.

5] On the other hand, learned counsel for contesting respondents submits that the photocopy of Notary Register placed on record by the petitioners is not true copy of the original Notary register. It is submitted that summons was issued to the concerned Notary. Pursuant to said summons, he appeared before the learned trial Court and at that time it was possible for the petitioners to examine him, however, same was not done. It is submitted that thereafter, an application was moved by the concerned Notary before the trial Court that he be examined as a witness in the matter. It is submitted that the petitioners contested the said application and thus the trial Court was constrained to reject the said application. It is submitted that there is no foundation for leading secondary evidence in the present case and thus the trial Court was justified in rejecting the application.

6] It is well settled that in a case where original document is not produced at any time nor any factual foundation has been led for giving secondary evidence, it is not permissible for the Court to allow a party to adduce secondary evidence. It is further well settled that where photocopy of the document is produced and there is no proof of it's accuracy on it being true reproduction of the original, such document cannot be considered as secondary evidence. In the present case, such foundational evidence is missing. No interference is thus called for in the impugned order. In the result, Writ Petition is dismissed.

                                                      [N.R.BORKAR,J]

rkmore                                      3/3