1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO.6261 OF 2011. _______________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _______________________|_______________________________________ Mr.J.R.Patil, advocate for the petitioners. CORAM : S.V.GANGAPURWALA,J. Date : 22.08.2011. 1. Heard. 2. The present petitioners are the original defendants. The Respondent has filed a suit for declaration of ownership and injunction. The Respondent has produced the copy of Power of Attorney executed by the present petitioners in favour of one Prakash. The Respondent filed an application for adducing secondary evidence in respect of said Power of Attorney as the original was not traceable. The trial Court allowed the said application. Aggrieved thereby, the defendants have filed the present Writ Petition. 2 3. Mr.Patil, learned counsel for the petitioners submits that the Court has in a very casual manner dealt with the matter U/s 65 of the Indian Evidence Act. The Rules laid down U/s 66 of the Indian Evidence Act are not satisfied. Unless the Respondent proves the existence of the document, its contents, permission to adduce secondary evidence can not be given. Relying on Section 66 of the Indian Evidence Act, the learned counsel states that even no notice was given to the wife of Prakash for producing the original and unless notice is given, the Respondent could not have been allowed to adduce secondary evidence on the said document. The learned counsel relies on the judgment of the Apex Court in a case of "H.Siddiqui (dead) by L.Rs. Vs. A. Ramalingam" reported in 2011(4) Mh.L.J. 88. 4. No doubt, before party is allowed to adduce secondary evidence, he has to satisfy the Rules and the Provisions laid down under the Evidence Act. 5. The defendants/present petitioners have 3 not disputed the execution of the Power of Attorney by them in favour of Prakash. It is also not disputed that Prakash is a dead. The Respondent has categorically stated that the wife of deceased Prakash could not find out the original inspite of efforts and as such has sought permission to adduce secondary evidence. The wife of Prakash is not a party to the present proceedings. Even Prakash is dead. In light of that the mandate of issuing notice as laid down U/s 66 would not be attracted. Even the judgment of the Apex Court relied by Mr.Patil, learned counsel would not be applicable in view of the fact that the defendants have admitted the execution of Power of Attorney in favour of deceased Prakash. The only objection was that the contents of the said copy of Power of Attorney produced on record by the Respondent is not as per the original. It is for the present Respondent to prove the same in the evidence. Allowing permission to adduce secondary evidence does not mean that the document is proved. The Respondent shall prove the said 4 document after the permission is granted. 6. In light of the above, no error of jurisdiction on the part of the trial Court while allowing the application and passing the order impugned. 7. In the result, the Writ Petition is dismissed. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) Dt.22.08.2011. asp/office/wp6261.11 5