1 wp623.11 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 623 OF 2011 Pratap Builders and Developers ..PETITIONER -VERSUS- Dharamsingh S/o Sardarsingh Chhabada and others ..RESPONDENTS ..... Mr. A.S. Bajaj, Advocate for petitioner. Mr. P.N. Sonpethkar, Advocate for respondent no.2. Mr. H.M. Salve, Advocate for respondent no.3. Mr. Pawankumar Lakhotia holding for Mr. P.F. Totala, advocate for respondent no.4. Mr. R.C. Chabda, Advocate for respondent no.5. Mr. Ingle Patil, Advocate for respondent nos. 7 and 9. Mr. Y.V. Kakade, Advocate for respondent nos. 10 to 12. ..... (CORAM : B.P. DHARMADHIKARI, J.) DATED : 21st March, 2011. PER COURT : 1. Heard Advocates Mr.Bajaj for petitioner-original defendant no.6, Mr. Yuvraj Kakade for respondent nos. 10 to 12 supporting the petitioner, Mr. Sonpethkar for respondent no.2, Mr. Lakhotia holding for Mr. Totala for respondent no.4, Mr. Ingle Patil for respondent nos. 7 and 9 and Mr. R.C. Chabda for respondent no.5. 2. The order dated 10.01.2011 passed by the 2nd Joint Civil Judge, Senior Division, Aurangabad below Exhibit-867 refusing leave to present petitioner (defendant no.6) to lead secondary evidence is questioned before this Court. According to Advocate Mr. Bajaj, the reason that said document dated 07.01.1994 is oral agreement as assigned in the impugned order, is incorrect. He further contends that complete copy of disputed document i.e. 2 wp623.11 agreement of sale dated 07.01.1994 is produced on record. Bifurcated agreements thereafter are only not available and hence its copies have not been produced. According to him, rejection of permission to lead evidence of 62 witnesses has got no bearing on his application at Exhibit-867. Attention is invited to written statement to show how the agreement dated 07.01.1994 was executed, how at the request of Sardarsingh two bifurcated agreements thereafter have been entered into and how thereafter, possession of all three documents was required to be handed over to him temporarily and in good faith. Learned Counsel further contends that those documents are not received back thereafter. Attention is invited to various litigation to point out that some legal heirs of Sardarsingh have filed Suit for partition and separate possession, while one of them has accepted the agreement dated 07.01.1994 and filed suit for its cancellation and for consequential reliefs. In this view of the matter, according to him, the impugned order shows total non-application of mind and is unsustainable. 3. According to Advocate Mr. Salve for respondent no.3, as no relief based upon the alleged agreement dated 07.01.1994 is sought any where by the petitioner-defendant no.6, leave sought for by him is misconceived. He points out that after Writ Petition challenging the denial of examination of 62 witnesses was rejected and matter was expedited, for the first time, the petitioner sought orders on Exhibit-867. His contention is it is only with a view to delay adjudication. 4. Advocate Mr. Sonpethkar as also Mr. Lakhotia point out that basic finding reached is of absence of any document like agreement dated 07.01.1994. They urged that during trial the 3 wp623.11 mutual inconsistent stand about the cusotdy of same is on record of the trial Court and the trial Court applied its mind in that background. Advocate Mr. Sonpethkar relied upon the judgment of Hon'ble Apex Court reported at "AIR 2007 SC 1721" (J. Yashoda V/s K. Shobha Rani) to urge that when the document sought to be tendered in evidence is found to be photocopy and there was no possibility of said documents being compared with original, condition in Section 65(a) of Evidence Act was not satisfied and hence, the document could not have been accepted as secondary evidence. His contention is, here when very existence of original is in dispute, same consequences must follow. He has pointed out that most of final arguments before the trial Court are over and the matter is already expedited. 5. Advocate Mr. Chabda for respondent no.5 urges that his client has already entered into compromise with petitioners way back in 2006, but then he is interested in expeditious disposal of the matter. 6. Advocate Mr. Bajaj for petitioners in reply has relied upon the judgment of Hon'ble Apex Court reported at " AIR 1999 S.C. 1668 ( Nawab Singh V/s Inderjit Kaur) to urge that when original note was found in possession of the landlord, rejection of secondary evidence is held wholly unjustified. 7. Here basic dispute is about existence of agreement dated 07.01.1994. Trial Court has in paragraph no.10 of its order noted part of written statement where the defendant no.6(present petitioner) has made reference to oral agreement. The later part of very same written statement then make reference to execution of 4 wp623.11 agreement for sale on 07.01.1994. In paragraph no.11 trial Court has referred to his cross examination and noted that he admitted that there was oral transaction about suit property for consideration of Rs.2,36,00,000/-. Advocate Mr. Lakhotia has pointed out how the present defendant no.6 has changed his stand about custody of original before trial Court on various occasions. 8. In this situation, it is apparent that finding of trial Court about failure on the part of petitioners to prove the existence of agreement dated 07.01.1994 can not be said to be erroneous or perverse. 9. Learned Counsel for the petitioners was asked to point out to this Court the cross examination of respective plaintiff conducted in relation to document dated 07.01.1994. He states that no such cross examination is annexed with this Petition and learned Counsel was seeking time to find out whether in cross examination any question pertaining to that document is put to plaintiff or not. 10. As I do not see any jurisdictional error or perversity, the present Petition is rejected. No costs. However, liberty is granted to petitioners to challenge the impugned order of the trial Court after suit is finally decided, if such occasion arises. 11. As matter was already expedited by this Court, the trial Court shall attempt to decide the same as early as possible and in any case by 30th June, 2011. (B.P. DHARMADHIKARI) JUDGE gas/wp623.11