Smt. Mandakini Wd/O Bhimrao ... vs Vijay Vyankatrao Tejankar And ...
2021 Latest Caselaw 12887 Bom

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

                            Second Appeal No.105 of 2021
                               Smt. Mandakini wd/o Bhimrao Kankal
                                               vs.
                               Vijay Vyankatrao Tejankar & another
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Office notes, Office Memoranda of
Coram, appearances, Court's orders                             Court's or Judge's Orders
or directions and Registrar's orders.
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                           Shri M.V. Amale, Advocate for the Appellant.
                           Shri R.G. Kavimandan, Advocate for the Respondents.


                                            CORAM    :   S.M. MODAK, J.

DATE : 8th SEPTEMBER, 2021.

Heard the learned Advocate for the appellant and the learned Advocate for the respondents.

02] There is a suit for specific performance. The plaintiffs have based their claim on the basis of registered agreement for sale. Whereas, the appellant/ defendant contends that apart from that agreement, there was an unregistered agreement for sale. The defendant has pleaded this fact in the written statement and also stated on affidavit. The fault of the defendant was that she had not taken steps for issuing necessary direction against the plaintiffs to produce the original or not taken any step to adduce secondary evidence on her own.

03] Apart from other issue, the trial Court has emphasized on this inaction. That is why, the theory of unregistered agreement for sale was not accepted by the trial Court. When she preferred an appeal, the appellate Court has also refused to accept that theory and, hence, the judgment of the trial Court is confirmed.

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                          04]              The grievance of the appellant-defendant is

that both the Courts below ought to have considered the available evidence adduced about unregistered agreement for sale. Today, the learned Advocate for the appellant has read over the provisions of Section 66 of the Indian Evidence Act. Prior to adducing secondary evidence, the law expects the concerned party to give notice to other side and it should be in the manner prescribed by the law.

05] It is submitted that the appellant has filed copy of private paper-book of the first appellate Court in the Office Yesterday. In view of that, the Court will have to read the evidence also. Hence, the matter be kept on 5th October, 2021 for further arguments.

Civil Application [CAS] No.221/2021:

The learned Advocate for the respondents assures to issue instructions to the plaintiffs not to take steps in execution until next date.

JUDGE *sandesh