-1- IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 951 OF 2008 PETITION NO. 951 OF 2008 PETITION NO. 951 OF 2008 Vishwas Raghunath Swarge & anr : Petitioners v/s Ghhabilal Gunaji Ahire & anr. : Respondents Mr.S.K. Shinde i/b.Sagar Kasar Advocate for petitioners Shri R.M. Haridas i/b Mr. P.N. Johi advocate for respondent no. 1 and 2 Coram : A.A. Sayed,J Date:27.6.2008 P.C. 1. This petition is directed against the order dt. 30.11.2007 whereby the application of the respondents/org.plaintiffs for permission to lead secondary evidence and to exhibit the Xerox copy of the agreement which is subject matter of the suit is allowed and the said document was allowed be exhibited. 2. The suit is filed by respondent for specific performance of agreement dt.4.5.1998(’the said agreement’for short). The petitioners have denied that they have executed the said agreement. The learned counsel for the petitioner has sought to argue that the said agreement ought not to have been allowed to be exhibited in view of the provision of section 65 of the Indian Evidence Act wherein it is provided that -2- secondary evidence may be given of the existence,condition or contents of a documents in the following cases:- (a)"When the original is shown or appears to be in the possession or power- of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it." 3. He has further invited my attention to section 66 wherein it is provided that "Secondary evidence of the contents of the document referred to in section 65 (a), shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is(or to his attorney or pleader,) such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case...." -3- 4. Relying upon the aforesaid provisions the learned counsel for the petitioners has argued that no notice as required under the law was given to the petitioners and the respondents have not proved the ’existence’ of the said agreement which they claim to be in possession of the petitioners. The learned counsel for the petitioners has further argued that the petitioners themselves had made an application sometime in the year 2004 and called upon the respondent to produce the said agreement and therefore the application of the respondents ought not to have been entertained by the trial court. 5. Learned counsel for the respondents on the other hand has pointed out that at the very outset in their plaint, the respondents have specifically stated that the original of the said agreement was in possession of the petitioners and the said document was not in their possession and court has rightly allowed them to lead secondary evidence and exhibit the photocopy of the said agreement. The learned counsel has further invited my attention to proviso in section 66 of the Evidence Act wherein it is provided that the notice would not be required in order to render secondary evidence and that the court may -4- dispense with the notice when, from the nature of the case the adverse party would know that he will be required to produce it. The learned counsel has further submitted that the application made by the petitioners in 2004 and on the application an order has been passed on 22.2.2005 wherein the trial court has observed that no purpose will be served by giving directions to the respondents herein to produce the said agreement when the Respondents have denied the possession of the said agreement and contended that the same was with the petitioners. It is further observed in the said order dt. 22.2.2005 that if possession of the said agreement was with the respondents and same is produced at the later stage the respondents would have to suffer the consequences and the said application came to be disposed of.The learned counsel for respondents points out that no further proceedings have been filed against this order. 6. After hearing counsel of the parties and on perusal of the impugned order and the material on record as well as section 65 and 66 of the Evidence Act, I find that the trial court has rightly appreciated that the original of the said agreement is not in possession of the respondents. The respondents -5- at the very outset at the time of filing of the plaint have averred this fact that the original agreement of sale is in possession of the petitioners. The contention of the petitioners in respect of the respondents having failed to give proof of ’existence’ of the document and therefore not entitled to lead secondary evidence cannotbe accepted. 7. I find that the trial court has exercised its discretion correctly and judiciously. I find no reason to interfere in the impugned order. Writ petition is therefore dismissed. 8. Needless to say that the mere exhibiting the said agreement would not dispense of with its proof. (A.A. Sayed,J.)