1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 1961/2010. (Shri Nagsen N. Shende and another -: versus :- Shri Pandurang K. Shende and another ) 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. DATED : JULY 08, 2010. Heard Shri A.A. Bade, learned counsel for petitioners, Shri A.M. Ghare, learned counsel for respondent no.1. Application for permission to lead secondary evidence moved by the defendant no.2 vide Exh.82 in Regular Civil Suit No.5/2005 is rejected by the Civil Judge, Junior Division, Chandur Railway. Shri Bade, learned counsel contends that there is no application of mind as no finding even preliminary, about the availability or loss of original is recorded. Only after perusal of two precedence, as case of State of Rajasthan .vrs. Khemraj was found more close without discussing that case fully, it has been followed. According to Shri Bade, learned counsel even later part of that judgment is in favour of petitioners. 2 Shri Ghare, learned counsel for respondent no.1 contends that the trial Court has accepted the stand of plaintiff that original of Will is with defendant no.2 and has proceeded with that presumption to pass that order. Reliance is being placed upon the written statement to show that the original of Will was with defendant no.2. The application at Exh.82 moved by present petitioner specifically seeks leave to prove Will on the strength of certified copy with him and also states that the original is lost. It is supported by an affidavit. The written statement was filed about 4 years earlier and in it, the petitioners have stated that original Will was shown to Talathi and after verification the Talathi effected necessary changes and retained photostat copy of that Will with his records. The impugned order does not any where record any specific finding in this respect. Paragraph no.1 is about names of Advocates and hearing. Paragraph no.2 only mention the contentions of loss of original. Paragaraph no.3 then records the contention of plaintiff. In paragaraph no.4 contention of counsel for defendant no.2 and judgment cited by hims is mentioned. In paragraph no.5 citations of plaintiff are mentioned and then in paragraph no.6, in three sentences the conclusion has been drawn. There is no finding about loss of original or then its availability with the defendant no.2. In view of this position, I do not find it necessary to go into the correctness of reliance upon the case of State of Rajasthan .vrs. Khemraj, in said order. The issue can be considered by the trial Court in accordance with law. 3 The impugned order dated 08.02.2010 is accordingly quashed and set aside. Application Exh.82 is restored back to the file of trial Court for taking fresh decision in accordance with law. Writ Petition is allowed in the aforesaid terms. Rule accordingly, no costs. JUDGE Rgd.