1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION NO.630/2011 ABDUL KADAR MOHD ISMAIL ..VS.. M/S ABLE & CO. MALKAPUR & ORS - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri R.L. Khapre & Shri Mohta, advocate for petitioner CORAM: SMT. VASANTI A. NAIK, J. DATE: MARCH 01 , 2011 . By this petition, the petitioner impugns the order passed by the Ad-hoc Civil Judge, Senior Division, Malkapur on 26.11.2011 allowing the application filed by the respondent for permission to lead secondary evidence under section 65 of the Evidence Act to prove the contents of exhibit 157 and 158. The petitioner is the original plaintiff. A suit was filed by the plaintiff for a declaration, injunction and for rendering of the account of the partnership firm. During the pendency of the suit, the defendants filed an application calling upon the income tax department to produce the copy of the partnership deeds at exhibit 157 and 158. The trial court allowed the application filed by the respondents. The Income Tax Department, however sent a reply to the trial court on 29.9.2006 stating therein that the alleged partnership deeds were not available in their office as the office is required to carry out the weeding of the old 2 records regularly and since the record pertained to the case which was more than 30 years old, the records of defendant no.1 must have been weeded out. After this communication was received by the trial court, the defendant filed an application for permission to lead secondary evidence on the basis of the certified copy of the partnership deed. The trial court by the impugned order dated 26.11.2010 allowed the application filed by the defendants and permitted them to lead secondary evidence and prove the contents of the two partnership deeds by leading secondary evidence. On hearing the learned counsel for the petitioner and on perusal of the impugned order dated 26.11.2010, it appears that the trial court did not commit any error in permitting the defendants to prove the contents of the two partnership deeds by leading secondary evidence. It was consistently stated by the defendant that the original partnership deeds were sent to the Income Tax Department and this statement was not denied by the plaintiff. The trial court held that the defendant's case that the original documents were with the Income Tax Department was reliable and forceful. Moreover, according to the trial court the Income Tax Department, had not stated in their communication issued to the trial court that the original documents were never submitted by the defendants to the Income Tax Department. In fact in the communication issued by the Income Tax Department, it was stated that the 3 documents being more than 30 years old might have been weeded out. Since the certified copy of the said partnership deeds were granted by the Income Tax Department in favour of the defendant, the trial court rightly held that the defendants must have deposited the original documents with the Income Tax Department. Considering the fact that the notice to produce the document was issued to the Income Tax Department and considering the other facts stated herein above, the trial court rightly held that it was necessary to grant permission to the defendant to lead secondary evidence to prove the contents of the documents. The order passed by the trial court on 26.11.2010 appears to be just and proper and calls for no interference in exercise of the writ jurisdiction. In the result, the writ petition fails and is dismissed with no order as to costs. JUDGE SMP