Bombay High Court
Mahendra Kanhiyalal Jain vs The Mahavir Urban Co Ooperative ... on 12 October, 2021
Bench: Mangesh S. Patil
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
921 WRIT PETITION NO.4657 OF 2020
MAHENDRA KANHIYALAL JAIN
VERSUS
THE MAHAVIR URBAN CO OOPERATIVE CREDIT SOCITY LTD NVIPETH
JAGAON THROUGH ITS ADMINISTRATOR AND ORS
...
Advocate for Petitioner : Mr. Brahme Shailesh P.
CORAM : MANGESH S. PATIL, J.
DATE : 12.10.2021.
PER COURT :
Heard learned advocate Mr. Brahme for the petitioner.
2. The petitioner is the original respondent in a dispute before the Co-
Operative Court, who is aggrieved and dissatisfied by the judgment and
order passed in a Revision under Section 149(9) of the Maharashtra Co-
Operative Societies Act preferred by the disputant-respondent-Society,
thereby allowing its application (Exh. 42) for leading secondary evidence
and in the process quashing and setting aside the order of the Co-Operative
Court rejecting that application.
3. The learned advocate Mr. Brahme for the petitioner would submit that
there are no sufficient and cogent reasons as are required by Section 63 and
65 of the Evidence Act so as to grant permission to lead secondary evidence.
He would further submit that though the respondent-Society is now
asserting that the original documents have been lost and is coming out with
an explanation that those have been lost while the parties are engaged in
several disputes before different courts and fora, none of these original
documents were required to be produced in any of those proceedings. He
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would submit that the Revisional Court has indulged in supplanting the
grounds which were not available before the Co-Operative Court. Some
inferences have been drawn based on conjectures and surmises observing
that the Society is now being administrated by Board of Administrators and
the office is managed by Clerical staff and that is why there could be a
possibility of mismanagement resulting in loss of the original documents.
This is not the stand of the respondent in its application (Exh. 42) and still
the Revisional Court has made these observations which are perverse and
arbitrary.
4. Learned advocate would further submit that the Revisional Court has
also recorded a perverse observation that execution of all these documents
has been admitted by the petitioner in its written statement, when, in fact
the contentions in the written statement are otherwise. There was no error,
perversity or arbitrariness in the order of the learned Judge of the Co-
Operative Court and since the Co-Operative Appellate Court was exercising
a revisional jurisdiction, it could not have readily interfered with the order
passed by the Co-Operative Court.
5. I have carefully gone through the papers and considered the
submissions of the learned advocate Mr. Brahme. It is a matter of record
that the Revisional Court has at several places made certain observations
which can be described as perverse and arbitrary since those travel beyond
the stand of the respondent in its application (Exh. 42).
6. However, simultaneously, one cannot lose sight of the fact that the
respondent-Society is fighting for the claim for more than a decade. The
dispute is still at the stage of leading evidence. Though strictly speaking the
documents now sought to be proved by leading secondary evidence may
not be relevant and even may not have been produced in several other
litigation between the parties. The fact remains that for whatever reason
the respondent-Society has not been able to produce the original documents,
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the photocopies of which were already produced on the record along with
the dispute and are available to be led in evidence as secondary evidence of
the original documents.
7. Needless to state that this is not the stage at which the worth of the
documents is to be proved. Its proof and its bearing on the claim of the
respondent can be considered at the main hearing. It would be for the Trial
Court, depending upon the proof and veracity of these documents, taking
into consideration all other attending circumstances, to decide as to whether
the documents if genuine would have a bearing on the claim of the
respondent. This is not the stage to go into all those aspects.
8. Apart from the above state of affairs, it is important to bear in mind
that it is not the version of the petitioner that the original documents are
still in the custody of the respondent-Society but are being held back with
some ulterior motive. If this is so, one cannot comprehend as to how the
Society by holding back the original documents would want to succeed in
the dispute.
9. The learned Judge of the Co-Operative Court seems to have taken a
hyper technical view and ventured into the assessment of circumstances
being put forth by the respondent regarding loss of the original documents.
Taking into account the aforementioned facts and circumstances, in my
considered view the respondent-Society can be permitted to lead secondary
evidence as prayed for by its application (Exh. 42) and no prejudice is likely
to be caused to the petitioner.
10. Resultantly, though the learned Judge of the Revisional Court has
erred in recording some perverse and arbitrary observations, in the nutshell,
the view taken by it holding the respondent-Society entitled to lead
secondary evidence cannot be said to be illegal.
11. The Writ Petition is dismissed.
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12. The observations in the judgment shall not influence the learned
Judge of the Trial Court. Veracity or otherwise and wroth of the documents
sought to be proved by leading secondary evidence is a matter to be looked
into by it while deciding the dispute.
(MANGESH S. PATIL, J.)
mkd/-
