1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 1322 OF 2010 (Sanjeev V. Sahu vs. Jaidev L. Panchmatia & Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. APRIL 30, 2010. Heard Shri Manohar, learned counsel for the petitioner – original defendant No. 3, Shri Dangre, learned counsel for respondents No. 1 & 2, Shri Parsodkar, learned counsel for respondents No. 9, 10 & 11, Shri Abhyankar, learned counsel for respondents No. 13, 14 & 15 and Shri Rizwi, learned counsel for respondents No. 16 & 17. The challenge in this writ petition is to the order dated 17.02.2010 passed below Exh. 93 in Special Civil Suit No. 899 of 2005, whereby 3rd Joint Civil Judge, Senior Division, Nagpur, has permitted Respondent No. 1 (plaintiff) to lead secondary evidence in relation to certain documents. The said order is challenged before this Court. Shri Parsodkar, Shri Abhyankar and Shri Rizwi, learned counsel for respective respondents are supporting the petitioner. The short contention of Shri Manohar, learned counsel is that only on the basis of application 2 filed by the plaintiff on affidavit on 08.01.2010, the trial Court has recorded certain findings and leave has been given to lead secondary evidence. He is placing reliance upon the judgment of the learned Single Judge of this Court in the case of Boman P. Irani vs. Manilal P. Gala, reported at 2004 (2) Mh. L.J. 128, to urge that such leave is to be treated as provisional and only to enable the concerned party to lead necessary evidence. The finding as to existence of original or its loss needs to be recorded at the end of trial after the other party gets an opportunity to cross examine on such loss or existence. Shri Dangre, learned counsel states that the purpose of order impugned in this writ petition is to permit the petitioner – plaintiff to lead secondary evidence and for that purpose on the basis of affidavit filed and reply on affidavit, a prima facie finding has been reached on the basis of the copies of documents available on record. He is placing reliance upon the judgment in the case of Anil vs. Adinat h , reported at 2007 (2) Mh. L.J. 406. The perusal of both the judgments of this Court (supra) show that a conclusive finding about existence of original and its loss so as to admit the secondary evidence on record is to be delivered only after the party challenging such copies/ secondary evidence gets an opportunity to cross examine the party leading such evidence. In view of this position, it is apparent that the 3 findings in this respect recorded by the trial Court are provisional and subject to its further finding on the issue after the parties complete their evidence. With this clarification, writ petition is disposed of. However, there shall be no order as to costs. JUDGE *GS.