1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7296 OF 2009 Jagannath Ramchandra Jadhav and others Petitioners versus Suresh Vithal Jadhav and others Respondents Mr.N.V.Bandiwadekar for petitioners. Mr.T.D.Deshmukh for respondents 1 and 4. CORAM : A.S.OKA, J. DATE : 05th March 2010 PC :- 1. Heard learned counsel for the petitioners and learned counsel for the first and fourth respondents. Notice for final disposal was issued on 30th September 2009. Learned counsel for the petitioners states that all respondents are duly served. 2. The petitioners who are the plaintiffs have taken an exception to the order dated 18th July 2009 passed by the learned Trial Judge by which application made by the petitioners at Exhibit-111 has been rejected. The said application was made for seeking permission to lead secondary evidence in respect of sale deed dated 26th October 2 1942 by production of a certified copy thereof which is already on record. The said application was contested by the first respondent. Learned Trial Judge rejected the said application by observing that the same was made at a belated stage. The learned Judge observed that the applicant ought to have been filed before the petitioners closed their evidence. The learned Judge has observed that such application cannot be entertained at the stage of delivery of judgment. 3. Learned counsel for the petitioners submitted that the certified copy of the said document was produced along with the plaint. He has also placed on record the affidavit in lieu of examination-in-chief of the constituted attorney of the plaintiffs who deposed on behalf of the plaintiffs. He pointed out that in the affidavit in lieu of examination-in-chief that the said document has been relied upon and there is a reference to the certified copy thereof. He submitted that the document is very old document and what is stated in application at Exhibit-111 is that the document has been misplaced. He submitted that an opportunity deserves to be granted to the petitioners to prove the said document by leading secondary evidence. Learned counsel for first and fourth respondents submitted that in the affidavit in lieu of examination-in-chief, the constituted attorney of the petitioners has not come out with the case that the original document has been lost or misplaced. He submitted that it is 3 too late in the day for making such an application and if the same is allowed, it will cause prejudice to the respondents/defendants. 4. I have given careful consideration to the submissions. In the plaint the sale deed is relied upon in paragraph 3 as document of title of predecessors of the petitioners. Along with list at Exhibit-3, a certified copy of the said document was produced along with the plaint. As stated earlier, in the affidavit of examination-in-chief of the constituted attorney of the petitioners, there is a reference to the said sale deed and to the certified copy thereof on record. In the application at Exhibit-111, a specific assertion has been made that the original document dated 26th October 1942 has been misplaced. The application appears to have been opposed only by the first defendant. The opposition is mainly on the ground that the application has been filed after conclusion of arguments. However, there is no specific denial to the averment that the sale deed has been lost or misplaced. It is true that the application ought to have been made earlier. However, the suit is founded on the said document of title and a certified copy thereof was admittedly produced along with the plaint. Considering these circumstances, an opportunity deserves to be granted to the petitioners to lead secondary evidence of the said document. It is, obvious that as a consequence of permission being granted, the petitioners will have to recall their witnesses to prove the 4 said document. In such event, it will be also open for the respondents to lead further evidence. Even if petitioners do not recall their witnesses, it will be open for the respondents to recall the witnesses examined by the petitioners for further cross examination on the said document. 5. Considering the stage at which the application was filed, the petitioners will have to pay costs quantified at Rs.7,500/- to respondent nos.1 and 4 who have contested this petition. 6. Hence, I pass following order :- A) The impugned order dated 18th July 2009 is quashed and set aside; B) Application at Exhibit-111 is allowed and the petitioners are permitted to lead secondary evidence of the sale deed dated 27th October 1942 by production of a certified copy thereof which is already on record; C) It will be open for the petitioners to recall the witnesses examined by them. It will also be open for the respondents to recall the witnesses examined by the petitioners and also to lead further 5 evidence; D) The petitioners are directed to pay costs of Rs.7,500/- (Rs.Seven thousand five hundred only) to first and fourth respondents within a period of eight weeks from today. The deposit of the amount of costs in the Trial Court will be treated as sufficient compliance. Payment of costs shall be treated as a condition precedent; E) Writ petition stands allowed in above terms. (A.S.OKA, J.)