1 wp10887.10 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 10887 OF 2010 _____________________________________________________________________ Office Notes, Office | Memoranda of Coram, | appearances, Court's | Court’s or Judge’s orders orders or | directions and | Registrar's orders | _____________________________________________________________________ Mr. D.P. Deshpande, Advocate for the petitioner. Mr. R.B. Deshmukh, Advocate for respondent no.1. Mr. R.K. Ashtekar, Advocate for respondent no.2. 1. Heard Advocates Mr. Deshapnde for petitioner, Mr. Deshmukh for respondent no.1 and Mr. Ashtekar for respondent no.2. 2. The petitioner-plaintiff has filed the suit for specific performance of contract and agreement for sale was Notarised. He has further stated that as wife of the vendor was ailing, she could not come to the office of Notary and document was handed over to respondent no.2 to obtain her thumb impression. However thereafter the document was never returned to petitioner-plaintiff. He therefore moved an application and sought leave to prove that document by placing reliance on the extract as noted in the register of Notary. Trial Court rejected that application on the ground that notarial register is not secondary 2 wp10887.10 evidence and that formalities under Section 65(a) and 66 of the Evidence Act were not complied with. 3. Mr. Deshpande for petitioner states that the story in plaint has been denied by defendant no.1 and hence issuance of such notice will be empty formality. He further urged that the reliance is upon the extract of document as noted by Notarial register and that extract has been resorted to as secondary evidence. 4. Mr. Ashtekar and Mr. Deshmukh strongly oppose the prayer. According to Mr. Ashtekar document i.e. alleged copy of Notarial register itself is not placed on record. He further states that, the Notarized document itself is not secondary evidence and compliance with provisions of Section 65(a) and 66 of the Evidence Act is mandatory. Advocate Mr. Deshmukh adopted the same line of argument. According to him, when the document itself is not in existence, there is no question of giving any secondary evidence in relation thereto. 5. It is apparent that whether there was an agreement for sale between the parties or not, is disputed question and that can not be looked into at this stage. The effort of petitioner is to show agreement for sale and its existence and he is relying upon the alleged extract thereof as noted by Notary in his register. The contention is, defendant no.1(respondent no.1 and his sons) have 3 wp10887.10 placed thumb marks/signatures in that register of Notary. 6. The xerox of relevant page of the said register as maintained by Notary Shri. R.B. Deshpande shows that it carries some thumb impressions and signatures and also below column meant for noting the contents, same are mentioned. If this document is not already on record the petitioner-plaintiff can file it. However, I find that application at Exhibit-46 has been filed seeking leave to lead secondary evidence. In paragraph no.2, it is stated that, the certified true copy of the Notarial register has been placed on record. The trial Court has not found that without filing any such document on record, its leave was being sought. 7. The effort of petitioner-plaintiff is therefore not to prove Notarial register but he aggrieved for alleged agreement for sale with the defendant no.1 and for that purpose to prove contents thereof as noted by Notary. Hence, the contents as noted by Notary has pressed into service as secondary evidence. 8. Insistence of both the learned Counsel for respondents that there has to be notice to produce those record is unwarranted, it is specific defence that issuance of the notice will be empty formalities. I find therefore that the findings recorded by the Trial Court as unsustainable. 4 wp10887.10 9. The petitioner-plaintiff is permitted to produce the Notarial register by leading secondary evidence. 10. Needless to mention that all the objections about the existence of agreement or about the contents of alleged register are kept open and the learned Trial Court is free to consider it in accordance with law at appropriate stage. 11. The Petition is thus allowed. No costs. (B.P. DHARMADHIKARI) JUDGE. 10.02.2011 gas/wp10887.10