1 WP 4709.2011 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4709 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s orders Court’s or Judge’s orders Mr. A.B.Kadethankar, Advocate for the Petitioner. Mr. S.S.Rathi, Advocate for Resp.Nos. 1 to 4. ............................... CORAM :S.V. GANGAPURWALA, J. DATE :24/08/2011 PER COURT : 1. The present Writ Petition is filed by the original defendants. During the pendency of the Suit, the plaintiff filed an application for adducing secondary evidence in respect of the documents i.e. the agreements allegedly dated 30/06/1999, 30/04/2003 and 01/06/2004. The trial Court allowed the said application. The defendants aggrieved thereby have filed the present Writ Petition. 2. Mr. Kadethankar, the learned counsel for the Petitioners submits that the Order passed by the trial Court is perverse. The observations made in para nos. 12 and 13 of the Order are against the record. The defendants nowhere had admitted the transactions or the documents. 2 WP 4709.2011 On the contrary, even in evidence, the suggestion was given that the documents are forged and fabricated. In the Written Statement also, these documents were specifically denied, but still the learned Judge has assumed that these documents are not denied by the petitioners. The observations made in para nos. 12 and 13 as such are perverse. The learned counsel further contends that there is no foundation in the pleadings about the loss of the documents. The plaintiff is trying to bring her case within the meaning of Section 65 ( C ) of the Evidence Act. For the same, there is absolutely no foundation in the pleadings. In such circumstances, an opportunity should not have been extended to the plaintiff to adduce the secondary evidence. Even the evidence led by the plaintiff does not support her version. In the evidence, the plaintiff has stated that prior to two ( 2 ) years, the documents were lost. The evidence was recorded after few months of the filing of the Suit and in the Suit there is no mention about the loss of documents. In view of all these facts, the learned counsel contends that the order impugned is erroneous and deserves to be set aside. 3. Mr. Rathi, the learned counsel for the respondent supports the order passed and states that the ingredients required to adduce the secondary evidence are satisfied and the trial Court has rightly passed the order. 4. With the assistance of the learned counsel for the 3 WP 4709.2011 parties, I have gone through the Order, the application and the pleadings. 5. In the pleadings, there is denial to the documents, so also, the defendants have given suggestion to the plaintiff that those documents are false and fabricated. As such, it was incorrect on the part of the learned trial Judge to observe in para nos. 12 and 13 of the impugned order that the defence is not raised by the defendants during the cross examination that the documents are manipulated, so also, in the Written Statement the defendants have nowhere admitted the said documents and have denied the same. The observations made in para nos. 12 and 13 of the impugned order to that extent are struck down. 6. For a party seeking permission to adduce secondary evidence, it is necessary to show the existence of the documents and the loss of the same. The plaintiff has stepped in the witness box and had averred about the existence of the documents. Prima facie, at this stage, the Court has to consider the said evidence. Thereafter, the plaintiff has adduced evidence that the same is lost. Minor variations in the evidence, at this stage, may not affect the right of the plaintiff to adduce secondary evidence. On oath the plaintiff has stated that the original documents have been lost and further on oath also stated about the said documents being executed. 4 WP 4709.2011 7. Whether the plaintiff is in a position to prove the said documents in future or not is not required to be considered at this stage while dealing with an application for adducing secondary evidence. 8. In light of the above, the impugned order can not be faulted with except the observations made in para nos. 12 and 13 of the impugned order. 9. The Writ Petition is accordingly dismissed. No costs. [ S.V. GANGAPURWALA, J.] KNP/WP 4709.2011