SRJ 1 wp-1033-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.1033 OF 2010 Mr.Ramesh M. Jhaveri .. Petitioner V/s. M/s. Genesis Management Consultancy Services Pvt. Ltd., & Others .. Respondents. Mr. Niranjan Lapashiay with Mr. Dipen Furia i/b. M/s.Niranjan & Co.,for the Petitioner. Mr. Bharat Joshi i/b. Ms. P.D.Gala, for Respondent Nos.3 and 4. CORAM :A.S.OKA,J. DATE :7th APRIL,2010 P.C.:- 1] Heard learned counsel appearing for the Petitioner and learned counsel appearing for the Respondent Nos. 3 and 4. The Petitioner is the Plaintiff and the Respondents are the Defendants. An application was made by the Petitioner at Exhibit 32 seeking permission of the Trial Court to lead the secondary evidence of certain documents. The said application was contested by the 3rd and 4th Respondents by filing a reply. By the impugned order, the said application has been partly allowed. The paragraphs 8 and 9 of the impugned order and the operative part of the impugned order read thus:- SRJ 2 wp-1033-10.sxw 8 So far as, Nomination From as well as Transfer Forms are concerned, I would like to make it clear that original of both the said documents must have been in the possession of the Society of the suit premises. The Plaintiff can examine the concerned official of Society and can call said documents from the said Society. In this way, he can prove the said document. Therefore, I hold that in respect of the said documents, there is no need to permit the Plaintiff to lead the secondary evidence. 9 In respect of other documents in the notice to produce document are concerned, I would like to make it clear that there is no reference about the said document in the affidavit of document at Exh 33. Therefore, I hold that there is no need to allow the Plaintiff to adduce any secondary evidence in respect of the said documents. Hence, while summing up my discussion here, I hold that this application for production of secondary evidence is liable to be partly allowed as stated above. Accordingly, I answer point no.1 as partly affirmative and proceed to pass following order. ORDER 1. The notice is made partly absolute. 2. In respect of leave and licence Agreement, sale deed and share certificate, the Plaintiff is permitted to adduce secondary evidence subject to the admissibility of the said document as per law of evidence. 3. Parties to bear their own cost. SRJ 3 wp-1033-10.sxw 2] During the course of hearing, the 3rd Respondent for himself and on behalf of the 4th Respondent has filed a detailed affidavit dated 25th March, 2010 in this Court. In the said affidavit, 3rd Respondent has dealt with the issue regarding custody and relevancy of documents referred to in the notice to produce document dated 12th November, 2009 issued by the Petitioner. 3] By the impugned order, the Petitioner has been permitted to adduce secondary evidence in respect of the three documents which are at Sr. Nos,1,3 and 5 in the notice to produce dated 12th November, 2009. The affidavit of the 3rd Respondent discloses that there are certain other documents which are in the custody of the said Respondents. Instead of keeping the Petition pending, it will be in the interests of justice, if the Trial Court is directed to re-consider the prayer made in the application at Exhibit 32 with reference to the other documents (the documents other than at item nos.1, 2 and 5) in the notice to produce documents dated 12th November, 2009. The contesting Respondents have raised an objection to the relevancy of the certain documents. Apart from considering the case on merits as regards the prayer for grant of permission to lead the secondary evidence, the Trial Court will have to consider issue of relevancy of the said documents in the light of the pleadings, and affidavit of documents. This exercise is to be done by the Trial Court after hearing both the parties on all aspects. SRJ 4 wp-1033-10.sxw 4] Hence, I pass following order:- (i) The impugned order dated 12th January, 2010 is modified. The clause 2 of the operative part is confirmed. However, it is directed that the application/notice at Exhibit 32 shall be re-considered in relation to all the other documents set out in the notice to produce documents dated 12th November, 2009. (ii) The 3rd Respondent shall place on record of the Trial Court a true copy of the affidavit dated 25th March, 2010 filed this Court. The 3rd Respondent shall produce the documents which have been referred to in clauses (A) of paragraph 5 of the said Affidavit. A Copy of the affidavit and the said documents shall be produced by the 3rd Respondent before the Trial Court within a period of eight weeks from today. (iii) Thereafter, the learned Trial Court will proceed to consider the prayer in application/notice at Exhibit 32 as regards to other documents in the Notice to produce dated 12th November, 2009. (iv) As the Trial Court will have to consider the issue of relevancy, it will be open for the parties to file further affidavits for the purpose of hearing of the notice/application at Exhibit 32. SRJ 5 wp-1033-10.sxw (v) It is made clear that clause 2 of impugned order stands confirmed. (vi) All the contentions of the parties on merits are kept open. (vii) Petition is disposed of in the above terms. (A.S.OKA,J.)