1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 438 OF 2010 Rambhau Sahadu Chumbhale & Ors. .... Petitioners Vs. Shantabai Govind Walve & Ors. .... Respondents Mr. Sachin G. Gite for the Petitioners. Mr. R. A. Thorat for Respondent Nos. 1 to 3. CORAM : A.S. OKA, J. DATE : MAY 6, 2010 P.C. : Notice for the final disposal was issued. The Petitioners are the original Plaintiffs and the Respondents are the Defendants. An application was made by the Petitioners at Exhibit 29 seeking permission to lead the secondary evidence of an agreement by invoking section 65 (c) of the Indian Evidence Act, 1872. The said application has been rejected by the learned Jt. Civil Judge, Senior Division, Nashik by the impugned order dated 30th July, 2009. The first ground on which the application is rejected is that in the plaint it is not stated that the document has 2 been misplaced. The second ground is that it is not clearly stated in the application that the original document is lost after institution of the suit. The third ground is that the loss of the document is not proved by the Petitioners. 2. It appears that there is no affidavit in support of the Application filed by the Petitioners. The learned counsel appearing for the Petitioners stated that an opportunity may be granted to the petitioners to substantiate their case for leading secondary evidence of the said agreement by permitting the Petitioners to file a detailed affidavit in support of the application. 3. Prima facie it appears to me that a very hyper-technical view has been taken by the Trial Court. Nevertheless, the Petitioners desire to file a detailed affidavit in support of the application at Exhibit 29. Therefore, the request made by the learned counsel for the Petitioners deserves to be accepted. The learned counsel appearing for the Respondents submitted that an opportunity may be granted to the Respondents to deal with the affidavit. The request is reasonable. Hence, I pass the following 3 order : :: O R D E R :: i. The impugned order dated 30th July, 2009 passed by the 3rd Jt. Civil Judge, S. D., Nashik, is quashed and set aside. The Application at Exhibit 29 is restored to the file. ii. It will be open for the Petitioners to file an additional affidavit in support of the Application at Exhibit 29. The Trial Court will permit the Respondents to file counter affidavit for dealing with the affidavit which may be filed by the Petitioners. iii. The Trial Court will decide the Application at Exhibit 29 afresh. iv. All the contentions of the parties in the 4 pending Applications are kept open. v. The Writ Petition is disposed of in the above terms. [A.S. OKA, J.]