1 WP 1423.2011 - ( J ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 1423 OF 2011 Vasant S/o Govardhan Madharele Age : 72 Yrs., Occ. Business, R/o : 47, Sarasnagar, Behind Market Yard, Ahmednagar. .... PETITIONER V E R S U S 1. Balasaheb Maroti Londhe Age : 53 Years, Occ. Agril. R/o : Bayajabai Jeur, Tq. & Dist. Ahmednagar. 2. Chandrakala Madhav Hajare Age : 35 Years, Occ. Household, R/o : Saraswati colony, Shrirampur, through its G.P.A. Sau. Pushpa W/o Balasaheb Londhe Age : 50 Yrs., Occ. Household, R/o : Bayajabai Jeur, Tq. & Dist. Ahmednagar. 3. Sunil Narayan Gaikwad Age : 50 Years, Occ. Business, 4. Rajendra Narayan Gaikwad Age : 42 Years, Occ. Business, Both R/o : Mohanbag, Delhi gate, Ahmednagar. .... RESPONDENTS 2 WP 1423.2011 - ( J ) Mr. K.S.Bhore ,Advocate for the Petitioner. CORAM : S.V. GANGAPURWALA, J. DATE OF JUDGMENT : 09/06/2011 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. 2. The notice for final disposal was issued to the respondents, returnable on 21/3/2011. The office endorsement shows that the respondents are served. None appears for the respondents. 3. The present petitioner is the original plaintiff, who had filed Suit for specific performance of contract on the basis of the agreement of sale. The original agreement of sale was filed at Sr. No. 1 along with list Exh. 43. The plaintiff had led his evidence on affidavit. Thereafter the plaintiff has filed an application to mark exhibit the said agreement of sale. The said application is rejected. The trial Court has refused to exhibit the said document on the ground that the scribe or the witness has not yet been examined, so it can not be said that the agreement is proved. The said order is assailed in the present petition. 3 WP 1423.2011 - ( J ) 4. Mr. Bhore, the learned counsel for the petitioner submits that the agreement of sale is not a document which requires compulsory attestation and as such rigors of Section 68 of the Indian Evidence Act would not be applicable. It is not necessary to examine the attesting witness to prove the said document. According to the learned counsel, in the evidence the plaintiff has proved the contents of the said document, so also signature of the witness and the executant. The same was sufficient to mark the document exhibit as per Order XIII of the Code of the Civil Procedure. 5. The proposition that the agreement of sale does not require attestation, need not be dilated. The agreement of sale is not a document which requires compulsory attestation. Mere marking of exhibit does not mean that the said document is proved. The defendant had admitted his signature on the said document. The plaintiff had proved the contents of the said document in his deposition. The Court below has not properly considered the concept of ‘ proved ’, ‘ dis-proved ’ and ‘ not proved ’ as is elicited in the provisions of the Indian Evidence Act. No other objection for exhibiting the said document is stated. Merely because the scribe of the document or the attesting witness has not been examined, that would not mean that the agreement of sale can not be proved by the plaintiff, who has 4 WP 1423.2011 - ( J ) proved the contents of the document and has also identified the signatures of the executant and the attesting witness of having signed before him. Mr. Bhore, the learned counsel relied on the Judgment of the Apex Court in the case of Hans Raji V/s Yosodanand reported in 1996 ( 7 ) SCC – 122, which has held as under : “ Section 68 - Proof of execution of document required to be attested by law - Since sale deed is not required to be attested by law, Section 68 will not be attracted even if some marginal witnesses had attested the same - Therefore for proving the sale deed, it was not necessary to examine at least one attesting witness as required under Section 68 of the Act - The High Court was wrong in taking the view that proviso to Section 68 of Evidence Act was applicable. For proof of the sale deed, there was no occasion to examine any attesting witness to the document in question in compliance of Section 68 of the Evidence Act as the sale deed is never required to be attested and even if some marginal witnesses had attested the document, the Section 68 will not be attracted which applies to the proof of execution of document required by law to be attested ”. 5 WP 1423.2011 - ( J ) 6. Taking into account the above conspectus of the matter, the impugned order is quashed and set aside and the application ( Exh. 76) is allowed. The said agreement be marked exhibit. 7. Rule is made absolute in the above terms. No costs. [ S.V. GANGAPURWALA,J. ] KNP/WP 1423.2011 - ( J )