[Cites 14, Cited by 0]
Bombay High Court
Rajeev Ganpat Mayekar vs Babulal Ganpat Pardeshi Died Through ... on 28 January, 2026
2026:BHC-AUG:4175
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 9816 OF 2021
RAJEEV GANPAT MAYEKAR
VERSUS
BABULAL GANPAT PARDESHI DIED THROUGH HIS LEGAL HEIRS
GOPAL BABULAL PARDESHI AND OTHERS
...
Mr. Manoj U. Shelke - Advocate for Petitioner
Mr. S.B. Bhapkar - Advocate for Respondents
...
CORAM : SIDDHESHWAR S. THOMBRE, J.
DATE : 28.01.2026
ORDER:
1. Heard learned Counsel for the respective parties.
2. The petitioner is aggrieved by the order dated 15.02.2020 passed
below Exhibit-64 by the learned Joint Civil Judge, Senior Division,
Bhusawal in Regular Civil Suit No.92 of 2012, whereby the application
filed by the respondents/defendants seeking permission to lead secondary
evidence of the agreement of sale dated 08.08.2005 came to be allowed.
3. Learned Counsel for the petitioner submits that the plaintiff has
filed the Regular Civil Suit No.92 of 2012 before the Civil Judge, Senior
Division, for specific performance of contract. Defendant No.1 had earlier
filed an application under Order XI Rule 16 of the Code of Civil
Procedure seeking production of the agreement of sale dated 08.08.2005.
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The learned Trial Court, by order below Exhibit-16, rejected the said
application. It is further submitted that thereafter the defendants moved
an application below Exhibit-64 under Sections 63 and 65 of the Indian
Evidence Act, seeking permission to lead secondary evidence. The said
application was opposed by the plaintiff contending that the agreement
of sale dated 08.08.2005 is an unregistered document, insufficiently
stamped, and therefore inadmissible in evidence. It was also contended
that the respondents/defendants never executed any such agreement in
favour of the plaintiff and that the plaintiff was never put in possession
pursuant thereto. Learned Counsel further submits that the trial has
already commenced and the suit is at the stage of plaintiff's evidence and
therefore, at such a belated stage, the application ought not to have been
allowed.
4. In support of his submissions, learned Counsel relied upon the
following judgments :
(a) This Court (Bench at Bombay) in the case of Parasanbai Dhanraj
Jain and Ors. Vs. Sunanda Madhukar Jadhav and Ors., in Civil
Revision Application No.82 of 2016 decided on 10.11.2017.
(b) This Court (Bench at Aurangabad) in the case of Ramdas Bhatu
Chaudhary (since deceased through LRs.) Vs. Anant Chunilal Kate,
in Second Appeal No.972 of 2004 decided on 27.07.2006.
(c) This Court (Bench at Nagpur) in case of Ganpat Pandurang
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Ghongade and Ors. Vs. Nivrutti Pandurang Ghongade, in Second
Appeal No.427 of 1992 decided on 14.03.2008.
5. In the case Parasanbai (supra) paragraph 11, which reads as
under:-
11. I have recently set out the law on this (Order dated 3rd
November 2017 in Writ Petition No. 11151 of 2017, Karthik
Gangadhar Bhat v Nirmala Namdeo Wagh & Anr. See also: Anandji
Virji Shah & Ors v Ritesh Sidhwani & Ors, Chamber Summons No.
1153 of 2015 in Suit No. 395 of 2007, decided on 27th June 2016.;
Ajaykumar Krishnaprasad Seth v Maya Ramesh Belvetkar & Anr,
Chamber Summons No. 17 of 2016 in Testamentary Suit No. 18 of
2003 in Testamentary Petition No. 628 of 2001, decided on 13th
October 2016.; MMTC Ltd v Samarth Auto Care Pvt Ltd, Suit No. 427
of 1995, order dated 1st October 2014.; Lajwanti v Jayshree P
Madhwani & Ors, Testamentary Suit No. 6 of 2004, order dated 14th
December 2016.; Sumati & Ors v Yashodhara & Ors, 2016(6) ALL MR
507 (per Shukre J)). and I will say so briefly once again: either
secondary evidence is led or it is not led. Either the provisions of
Section 65 are met or they are not met. No permission of a Court is
required to lead evidence of any kind. No judge in the subordinate
judiciary to this High Court will hereafter will insist on any such
application under any circumstances whatsoever. I do not think I can
put it in any clearer terms than this. Any such order is wholly illegal
and liable to be set aside. A copy of this order is now to be circulated
to every Civil Judge in the State of Maharashtra. To clarify: in an
evidence affidavit under Order 18, a witness may well say of a given
document that he cannot prove it by direct evidence and then
proceed to adduce the secondary evidence in compliance with
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Section 65 of the Evidence Act. The trial court is to consider that
evidence, viz., the reason given for not leading direct evidence, and
the secondary evidence led, and is to then decide whether the
secondary evidence led is sufficient. That is all. There is absolutely no
question of an application, whether styled as an interim application
or a 'MARJI' application, for 'permission' to lead secondary evidence.
The Court cannot refuse that permission, and it cannot insist on an
application for any such permission.
In view of the above, this Court observed that no permission
of the Court is required to lead secondary evidence and that it is for the
trial Court to appreciate whether the requirements of Section 65 of the
Evidence Act are satisfied after evidence is adduced.
6. In the case of Ramdas (supra) paragraph 10, which reads as
under :
10. As referred in aforesaid paragraphs of this judgment,
document Article "D" is on record. The learned trial Court had
given liberty to the defendants to prove said document in
accordance with the provisions of the Indian Evidence Act,
1872 ("Evidence Act") - I have put a specific query to the
learned Counsel for the appellants as to whether this
document is referred to in the evidence of plaintiff. He is
unable to point out from her evidence that she had referred to
this agreement of sale. I myself has also examined the
evidence of plaintiff, which is in vernacular. However, I could
not get reference of this agreement of sale in her evidence. The
parties on issue, have to produce primary evidence in the
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Court. The primary evidence means a document itself and has
to be produced in the Court for inspection of the Court. Said
provision is laid down under Section 62 of the Evidence Act.
Leading secondary evidence is made permissible under certain
circumstances. It is provided under Section 63 of the Evidence
Act and it reads as under:
63. Secondary Evidence. Secondary Evidence means and
includes
(1) certified copies given under the provisions hereinafter
contained ;
(2) copies made from the original by mechanical processes
which is themselves insure the accuracy of the copy, and copies
compared with such copies;
(3) copies made from or compared with the original;
(4) counterparts of documents as against the parties who
did not execute them;
(5) oral accounts of the contents of a document given by
some person who has himself seen.
Now, turning to the facts of the present case and on
examination of agreement of sale Article 'D", I find that the
said document is not compared with the original by any
authority and no such endorsement is appearing on such
document. It is also not clear that under which mechanical
process, this document is procured by the defendants and
there is no proof regarding accuracy of the photostat copy in
relation to the original copy of the document. It is also not
established by the defendants that this document was in
possession of the plaintiff and production thereof is denied by
the plaintiff. In absence of preparation and endorsement
regarding verification of the document. It cannot be said that
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the defendants have legally established/proved document
Article "D".
The cases in which secondary evidence relating to the
documents may be given have been listed under Section 65 of
the Evidence Act. Such evidence can be tendered of the
existence, condition or contents of a document. If it is
established by a party to the suit or proceeding that when the
original is shown or appears to be in possession or power of
the person against whom the document is sought to be proved
or of any person out of reach of or not subject to process of the
Court or of any person legally bound to produce it, and when
after the notice as mentioned in Section 66, such a person does
not produce the said document. Section 65(b), (c), (d), (e), (f)
and (g) also details the contingencies, where in secondary
evidence can be lead. In the present case I am wary of the fact
that the notice was given by defendants to the plaintiff. It is
clear from the notice Exhibit 92 given by the defendants to the
plaintiff that the plaintiff has denied possession of the said
document i.e. agreement of sale dated 15-10-1984. The
defendants have not led a foundation in their pleadings i.e. the
written statement that the said agreement was executed by
deceased Bhatu in favour of the plaintiff on 15-10-1984 and
terms and conditions of such agreement agreed between the
defendants as well as the plaintiff were embodies in the
"Agreement" and said "Agreement" is in possession or power of
the plaintiff. In absence of any foundation under the pleadings,
in my view, subsequent notice Exhibit 92 given by the
defendants looses its importance. However, said notice was
spontaneously replied by the plaintiff, denying the possession
of such an agreement of sale. In this fact situation, it cannot be
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said in the present case that the said agreement of sale was in
possession of power of the plaintiff. In the present case, said
document is set up against the plaintiff. The plaintiff is not
accepting existence of such an agreement of sale.
Clause (c) of Section 65 of the Evidence Act refers to the
destruction or loss of such original document. This clause also
provides that if secondary evidence can be lead if party
offering such evidence of its contents cannot produce the
document within reasonable time. However, such inability
must not be arising from such party's own default or neglect.
In the present case, there is no evidence on oath led on behalf
of the defendants regarding such destruction or loss of
agreement of sale dated 15-10-1984 and therefore, this
photostat copy Article "D" cannot be read and/or is not
admissible in evidence. Looking to entire scheme of Section 63
to 66 of the Evidence Act, I am of the opinion that the
document marked by Article "D" cannot be treated to be
secondary evidence and justifiably has not been accepted by
the first Appellate Court.
In this case, this Court examined the nature of secondary
evidence and held that unless foundational facts as required under
Sections 63 to 66 of the Evidence Act are established, such secondary
evidence cannot be accepted.
7. In the case of Ganpat (supra) paragraph 13, which reads as under:-
13. Exh. 38 as also Exh. 47 are secondary evidence. There is
no evidence on record to show that original was not available.
On the contrary, the trial Court has already recorded a finding
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that it is in possession of respondent. The lower appellate
Court has not considered this aspect at all. On the strength of
oral evidence of brother Kisan, the lower appellate Court has
found the contents of Exh. 47 to be more correct and therefore
for this reason only it has refused to act upon Exh. 38.
However, it has overlooked provisions of Sections 65 and 66 of
Indian Evidence Act. Until and unless there was a leave sought
to tender secondary evidence and leave was granted, no
Secondary evidence could have been looked into. Exh. 47
being secondary evidence, could not have been looked into at
all by lower appellate Court. The logic behind the arrangement
as found by learned lower appellate Court in Exh. 47 is already
considered by me above. The arrangement allegedly made in
favour of present respondent does not appear to be consistent
with the earlier part of the document. However, it cannot be
forgotten that Exh. 47 is only a xerox copy. Whether the
alleged portion is an alteration or not also cannot be
conclusively decided as original document has not come on
record. It is a well known fact that in the process of preparing
xerox copy, there can be several manipulations and hence it is
unsafe to act upon said xerox copy.
It was held that in absence of proof regarding non-
availability of the original document, secondary evidence cannot be acted
upon.
8. As far as the judgment in Parasanbai (supra) is concerned, it
pertains to the issue whether a Court can insist upon an application
seeking permission to lead secondary evidence. The said judgment does
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not lay down that secondary evidence must automatically be accepted
without proof. As regards Ramdas (supra) and Ganpat (supra), the said
judgments deal with the admissibility and proof of secondary evidence
after it is led, whereas in the present case, the impugned order merely
permits the respondents/defendants to lead such evidence.
9. In the present case, the respondents/defendants specifically
pleaded that the agreement of sale dated 08.08.2005 was executed
between the parties and that the original document is in possession of the
petitioner/plaintiff, whereas the respondents/defendants possess only a
photocopy. It is also an admitted position that the photocopy of the
agreement was produced at the time of consideration of the application
for temporary injunction. The learned Trial Court has considered that the
earlier order below Exhibit-16 pertained to production of documents,
whereas the present application relates to leading secondary evidence.
The Trial Court has rightly observed that it is for the
respondents/defendants to establish the existence, execution and
contents of the document by leading secondary evidence in accordance
with law.
10. Merely because the application filed by the
respondents/defendants has been allowed, it does not mean that the
document stands proved. The petitioner/plaintiff shall have full
opportunity to cross-examine the witnesses, challenge the admissibility
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and dispute the genuineness of the document. The Trial Court shall
decide the evidentiary value of the document at the appropriate stage.
11. In view of the above, no perversity is found in the order dated
15.02.2020 passed below Exhibit-64 by the learned Joint Civil Judge,
Senior Division, Bhusawal in Regular Civil Suit No.92 of 2012 warranting
interference under writ jurisdiction.
12. Hence, the Writ Petition stands dismissed.
13. There shall be no order as to costs.
[ SIDDHESHWAR S. THOMBRE ]
JUDGE
Pooja Kale/
