1 wp9802.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9802 OF 2010 KJ Shri Gokul @ Gobul Raja Nagareddi ) Deceased through legal heirs and Anr. )..Petitioners Versus Shri Ram Lochandas Ochani & Ors. )..Respondents ---- Shri S.S.Kulkarni for the petitioners. Shri Rahul D.Motkar for the respondent no.1. ---- CORAM : MRS.MRIDULA BHATKAR,J DATE : 30.8.2011 PC 1 Heard finally at the stage of admission by consent. 2 The affidavit of service is filed by the learned Counsel for the petitioners showing service on respondent nos.2 to 14. None appears for respondent nos.2 to 14. 2 wp9802.10.sxw 3 Petitioner’s application for adducing secondary evidence is rejected by the trial Court. Hence, this petition. 4 The petitioners who are the original plaintiffs have filed a suit for specific performance of the agreement dated 21.5.1998. The original plaintiff no.1 is a husband and original plaintiff no.2 is a wife. The suit was filed by both against the respondent nos.2 to 14 who are the landlords and respondent no.1 is the original defendant no.1 in whose favour, petitioner nos.2 to 14 have sold the rights of development of the property. The original plaintiff nos.1 & 2 thereafter have entered into an agreement with respondent no.1 (defendant no.1) that they would vacate the tenanted premises for the consideration of the alternative new premises. The suit was filed for the performance of the said agreement. Defendant no.1 i.e respondent has filed a written statement in which the agreement dated 21.5.1998 though admitted, a defence of further new agreement is taken. 5 Original plaintiff during the pendency of the suit died and his 3 wp9802.10.sxw children stepped in his shoes along with petitioner no.2-wife. They have filed application in the suit for seeking permission to tender secondary evidence as the original documents were lost and not found due to the death of original plaintiff no.1. Learned trial Court has rejected the application on the ground that the plaintiffs have not offered a satisfactory explanation as to why the plaintiffs did not produce the original documents at the time of institution of the suit and therefore, plaintiffs were held negligent and so application was rejected. 6 Learned Counsel for the petitioners submits that the petitioners after the death of original plaintiff have shifted their residential premises and during shifting, the documents might have been misplaced and deceased-plaintiff no.1 was looking after the suit and was in possession of the original documents. Hence, the application ought to have been allowed by the trial court. 7 Per contra, learned Counsel appearing for the respondent no. 1 submits that the documents which the petitioners want to 4 wp9802.10.sxw produce are not attested and they cannot be taken as true documents. He submits that the learned trial court has correctly held that the original documents ought to have been filed along with the plaint. He argued that the petitioners did not lodge any complaint as the documents were lost and hence, the petition be dismissed. 8 The application to tender secondary evidence was made under Section 65-c of the Evidence Act which allows party to lead secondary evidence on record if the condition contemplated under Section 65-c is fulfilled by the parties. It states that if original documents are lost or destroyed and reason is not arising from his own default or neglect, then the secondary evidence is to be allowed. As per the requirement of the procedural law, original documents are to be submitted along with the plaint when it is instituted. However, generally these original documents are preserved by the party in its own custody and zerox copies or authenticated copies of the documents are submitted at the time of institution of the plaint. The reason is clear i.e the documents 5 wp9802.10.sxw should be safe and should not be misplaced or tampered in Court. In the present case, the original plaintiff is expired. The original plaintiff no.2 is a wife and it is submitted that the original plaintiff’s husband was looking after the suit and he has kept the original documents with him. The reason given by the petitioners that the documents were lost, they are not in their custody and due to the death of original plaintiff no.1, they are not in a position to lay their hands over the original documents, is a good and sufficient reason. 9 The learned trial Court ought to have considered it properly and plaintiffs should have been given an opportunity to tender secondary evidence as they have laid the foundation by giving proper reason to adduce the same. 10 The truthfulness and the contents of the documents which are tendered by way of secondary evidence is always a matter of scrutiny and appreciation by the court and for which the opposite party is always at liberty to cross-examine the witness on that 6 wp9802.10.sxw point. Hence, the order dated 8.2.2010 is quashed and set aside. The petition is allowed in terms of prayer clause-(a). Parties to act on an authenticated copy of this order. (MRS.MRIDULA BHATKAR,J)