1 (WP1496/11) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1496 OF 2011 Home Care Retail Marts (P) Ltd. .... Petitioners. V/s New Era Fabrics Limited .... Respondents. Mr. Y.S. Jahagirdar, Senior Counsel with Mrs. Ranjana Parikh i/b Mrs. S.M. Lanjewar for the Petitioners. Mr. M.M. Vashi i/b Mr. M.P. Vashi & Co. for the Respondents. CORAM: V. M. KANADE, J. DATE : 8th April, 2011 P.C.:- 1. Heard the learned Senior Counsel for the Petitioners and the learned Counsel for the Respondents. 2. Petitioners are the original Plaintiffs and Respondents are the original Defendants. For the sake of convenience, parties shall be referred to as “Plaintiffs” and “Defendants”. 3. Plaintiffs filed a suit in the Small Causes Court for a 2 (WP1496/11) declaration that leave and license which was executed initially by the parties was extended and he continued to be the licensee and for consequential relief of injunction restraining the Defendants from disturbing their possession. During the course of trial, Plaintiffs produced a list of documents. The objection was raised by the Defendants for exhibiting these documents. Plaintiffs relied on the affidavit in lieu of evidence and pointed out the reasons why, according to the Plaintiffs, the said documents were required to be exhibited. The Trial Court did not accept the two documents viz. certified copy of the Petition alongwith annexures, which was filed by the Defendants in this Court and it was merely marked “X” for the purpose of identification and, secondly, certain bank vouchers which were sought to be produced by the Plaintiffs were also marked as “X-4 to -X-9” for the purpose of identification. The Trial Court held that so far as the certified copy of the Petition which was filed in the High Court is concerned, the said certified copy of the Petition could not be said to be a public document within the meaning of section 74 of the Evidence Act. The Trial Court also relied upon the judgment of this Court in Legal Representative of Manohar vs. Vishweshwar Tukaram Giripunje1 So far as the bank vouchers are concerned, the Court held that the said vouchers were receipts and since the said vouchers were unstamped receipts, the same were inadmissible in evidence in view of the provisions of section 34 of the Bombay Stamp 1 2008 (3) BomCR 166 3 (WP1496/11) Act and the said vouchers/receipts were also marked as “X-4” to “X-9”. 4. Mr. Jahagirdar, the learned Senior Counsel appearing on behalf of the Petitioners/Plaintiffs submitted that so far as the certified copy of the Writ Petition filed by the Defendants in the High Court is concerned, it was a public document within the meaning of section 74 of the Evidence Act. It is submitted that this Hon’ble High Court is a court of record and in view of provisions of section 74 sub-clause (2), the Petition which was filed in this Court could be relied upon since it was a Petition filed by the Defendants against the Plaintiffs in the High Court and it was a dispute between the same parties. It is submitted that the said Petition was affirmed by the Defendants and reliance was placed on the documents which were annexed to the said Petition. It is submitted that the Plaintiffs are entitled to rely upon the letter which was annexed to the Petition in order to prove that the extension was granted by the Defendants to the leave and license agreement permitting the Plaintiffs to continue as licensee till 2017. It is submitted that the Trial Court had erred in relying on the judgment of this Court in Legal Representatives of Manohar1 (supra). It is submitted that, in the said case, the suit which was filed was between the different parties whereas, in the present proceedings, the Writ Petition was filed against the Plaintiffs by the Defendants in this Court and, therefore, the Trial Court ought 1 2008(3) BomCR 166 4 (WP1496/11) to have taken on record the certified copy of the Petition. 5. On the other hand, it is submitted by the learned Counsel appearing on behalf of the Defendants that the certified copy of the Petition alongwith the annexures could not be taken on record. It is submitted that the High Court in Legal Representatives of Manohar1 (supra) had clearly observed that the Trial Court had erred in relying on the Plaint. He invited my attention to the said judgment and order passed by the learned Single Judge of this Court. 6. In my view, so far as the first submission made by the learned Counsel appearing on behalf of the Petitioners/Plaintiffs is concerned, the Petition filed between the parties would fall within the ambit of the provisions of sub-section (2) of section 74 and, therefore, the Plaintiffs would be entitled to produce only a certified copy of the Petition. So far as the annexures are concerned, these annexures will have to be independently proved by the Plaintiffs and merely because these annexures are annexed to the Petition, they cannot be taken on record as exhibits. 7. The certified copy of the Writ Petition filed by the Defendants in this Court would be taken on record only to the extent of establishing that the Defendants had filed a Writ Petition, a certified copy of which is produced on record in the Trial Court. The observation made by the Trial Court 1 2008(3) BomCR 166 5 (WP1496/11) to that extent is modified. It is, however, clarified that so far as documents which are annexed to the Petition are concerned, the Plaintiffs will have to prove those documents in accordance with law and also contents of the Petition will have to be proved. Merely because the document is taken on record that would not establish that contents of the document also are proved. It is always open for the Plaintiffs to prove the contents of the document in accordance with law. 8. So far as the second set of documents is concerned viz. the bank vouchers which are sought to be produced, the contention of the learned Senior Counsel appearing on behalf of the Petitioners/Plaintiffs is that these documents are only the documents to establish that the vouchers were issued by the Defendants and, therefore, to that extent, they should be exhibited. This submission also cannot be accepted. The bank vouchers are receipts and, therefore, in view of the provisions of section 34 of the Bombay Stamp Act, unstamped document is inadmissible in evidence. The Trial Court, therefore, in my view, was justified in marking these documents for identification. The impugned order is modified accordingly. 9. Writ Petition is partly allowed and disposed of. (V.M. KANADE, J.) 6 (WP1496/11)